Conclusion

The two U.N. Associations recommend that the United States and the Soviet Union resume the practice of holding annual meetings between the U.N. Permanent Representatives and senior officials from both countries on the eve of each General Assembly. This would serve to harmonize policies in the United Nations and help develop a more cooperative approach to dealing with multilateral issues.

Close cooperation between our two governments should be reinforced by scholarly, professional and youth exchanges. Informal discussions are now under way to improve multilateral negotiating techniques. Soviet and American specialists on international relations and international law are multiplying their contacts. The United Nations Associations of the USA and the Soviet Union are planning the joint publication of a volume of essays on the United Nations by American and Soviet scholars and are expanding their efforts to involve young people in the study of the United Nations and in Model U.N. programs. In all these ways, an ever-widening circle of specialists, young leaders and scholars can reinforce the multilateral dimension of U.S.-Soviet relations.

terrorists, and illegal narcotics traffic. The widespread acceptance of the Court's compulsory jurisdiction under Article 36(2) could be facilitated by a provision under which such cases could be judged by chambers of five judges chosen in consultations with the parties rather than by the full court of fifteen judges.

Talks are now under way between senior legal officials of the Soviet Union and the United States on a common formula for accepting compulsory jurisdiction. The consensus that we hope will emerge from these talks should establish the foundation for a concerted submission to the Court's compulsory jurisdiction by all five permanent members following talks among these countries. If agreement among all five permanent members is not possible, our two countries should nevertheless consider discussing a formula for compulsory jurisdiction with other U.N. members willing to accept such an obligation.

Although the United States recently terminated its acceptance of the Court's compulsory jurisdiction under paragraph 36(2), it remains committed to the compulsory jurisdiction of the Court under paragraph 36(1) with respect to disputes over the interpretation of over sixty multilateral treaties to which it is a party. Until recently, the Soviet Union did not accept the Court's compulsory jurisdiction with respect to any multilateral treaty. The recent announcement by the Soviet Union that it will accept the Court's compulsory jurisdiction in the interpretation of five human rights treaties is a welcome step. The United States, for its part, has recently demonstrated its continued willingness to use the Court by its voluntary submission of a case with Italy involving an international claim.

The Soviet Union and the United States should review the whole range of multilateral treaties to which they are both parties and consider accepting the Court's compulsory jurisdiction for the settlement of disputes under a number of those treaties where they have not yet done so. They should also agree to accept the Court's compulsory jurisdiction in future multilateral treaties that may be negotiated under U.N. auspices.

Finally, the two countries should explore the possibility of submitting some outstanding dispute to the International Court of Justice on a voluntary basis, even as more ambitious proposals on compulsory jurisdiction are being explored. Such an action would have significant political value in demonstrating to the world community a new willingness by the two countries to take the risk of an adverse judgment in the larger interest of resolving disputes peacefully on the basis of law.

7

difficult decisions in the field, underscoring the importance of communication between the Secretary-General and the parties to an agreement. There are many steps that the U.S. and the Soviet Union can take, along with other U.N. members, to assure that the Secretary-General has adequate senior staff to manage these operations and that national contingents are properly trained.

Funding remains the greatest obstacle to the expanded use of U.N. forces. The use of a special assessment scale for peacekeeping is justified only for the military components of peacekeeping operations. As a general rule, observer missions should be funded through regular assessments. In any case, efforts currently under way to place funding on a more solid, broader and more predictable basis should be intensified. Arrearages, past and present, for peacekeeping operations should be paid up. The lack of funds, either from failure to pay regular assessments for peacekeeping or to respond to appeals for voluntary funds, puts a particularly unfair burden on troop-contributing nations. The double burden they bear endangers the future of all peacekeeping operations, with countries increasingly reluctant to commit their forces. For this reason, the U.N.'s financial obligation to compensate member states fielding troops or observers under U.N. auspices must be promptly honored.

A high point of this past year has been the smoothly functioning consultations among the Security Council's permanent members. The spirit of cooperation and collegiality, reinforced through frequent informal meetings of the permanent members, has facilitated negotiations on various regional issues.

The General Assembly also has an important responsibility in dealing with regional issues. In order not to undermine the U.N.'s credibility, the General Assembly should not pass resolutions which create unnecessary antagonisms among states or among constituencies in member nations that impede the lessening of tensions. The result of such votes has been a loss of confidence in the U.N. which has been substantial and long term. The two great powers, along with other states, have a special interest in seeking consensus in the General Assembly and moving it from confrontation to constructive action whenever possible. Although under the Charter and rules of procedure any state has the right to challenge the credentials of other states, these challenges should be handled in a way that is consistent with international law and maintains confidence in the integrity of the United Nations. For the U.N. to be a credible negotiating forum, it must remain an honest broker to all sides in a conflict, both at headquarters and in the field.

The record has shown that the U.N. can perform its tasks well if they are clearly defined and play to the Organization's strengths. In the area of peace and security, the U.N. can function best as a catalyst for breaking stalemates, a forum for airing grievances and solidifying world opinion, and a monitor for keeping peace, however fragile, in tense regional disputes. It can reinforce the work of regional organizations and provide early warning of incipient crises and on-call expertise when countries are ready to talk.

5

[L.C]

AMERICAN PARTICIPANTS
in Joint Meetings Between
The United Nations Association of the USA (UNA-USA)
and
The Soviet United Nations Association

Working Group on the Future of the United Nations

**Chairman:** Richard N. Gardner

Henry L. Moses Professor of Law and
International Organization

Columbia University Law School

Former Deputy Assistant Secretary for
International Organization Affairs and
Ambassador to Italy under President
Carter

**Lincoln P. Bloomfield**

Professor of Political Science

Massachusetts Institute of Technology

Former Director of Global Issues for the
National Security Council under
President Jimmy Carter

**Lewis A. Dunn**

Manager, Negotiations and Planning
Division

Science Applications International
Corporation

Former Assistant Director of the U.S.
Arms Control and Disarmament Agency

Former Ambassador to the 1985 NPT
Review Conference

**Seymour Maxwell Finger**

Senior Fellow

Ralph Bunche Institute, City University of
New York

Former Ambassador and Senior Advisor
to the U.S. Mission to the U.N.

**Toby Trister Gati**

Vice President for Policy Studies

United Nations Association-USA

**Patrick A. Gerschel**

Chairman
Gerschel & Company

**Congressman Bill Green**

U.S. House of Representatives (R-NY)

**James F. Leonard**

Former Deputy Permanent Representative
to the U.S. Mission to the U.N.

Former Deputy Director of the Arms
Control and Disarmament Agency

Former Ambassador to the Geneva
Disarmament Committee

**Samuel L. Lewis**

President

U.S. Institute for Peace

Former Assistant Secretary of State for
International Organization Affairs

Former Ambassador to Israel and Special
Assistant to the Under Secretary of State

**Edward C. Luck**

President
United Nations Association-USA

**Nathan A. Pelcovits**

Professor and Lecturer

School of Advanced International Studies

Johns Hopkins University

Former Director of U.N. Planning and
Chief Officer on Peacekeeping

U.S. Department of State

**David Popper**
President

American Academy of Diplomacy

Former Ambassador to Cyprus and Chile

**John G. Ruggie**
Professor

Graduate School of International Relations
and Pacific Affairs

University of California, San Diego

**David Scheffer**
Senior Associate

Carnegie Endowment for International
Peace

Former Staff Member

House Foreign Affairs Committee

**William Stibravy**

U.N. Representative for the International
Chamber of Commerce

Former U.S. Representative to ECOSOC
and UNIDO

May 1989

SOVIET PARTICIPANTS

**Co-Chairman:** Vladimir V. Shustov
Director

Research Coordination Center

Soviet Ministry of Foreign Affairs

Soviet Mission to the U.N.

**Co-Chairman:** Viktor L. Israelyan
Vice President, UNA-USSR

Professor-Consultant

USSR Diplomatic Academy

Former Ambassador to the Conference on
Disarmament

Former Deputy Permanent Representative
to the U.N.

Soviet Mission to the U.N.

**Anatoly A. Chapis**
Senior Researcher
Institute of World Economy and
International Relations (IMEMO)

USSR Academy of Sciences

**Vadim V. Denisov**
Postgraduate, Moscow State Institute of
International Relations (MGIMO)

**Mark L. Entin**
Senior Researcher, IMEMO

**Alexander A. Kalinin**
Consultant, UNA-USSR

**Oleg Khlestov**
Vice President, UNA-USSR
Professor, USSR Diplomatic Academy

**Gregory M. Kovrizhenko**
Vice President, UNA-USSR

**Ida N. Kuklina**
Chief of Section, IMEMO

**Igor Malashenko**
CPSU Central Committee Staff

**Gregory Morosov**
Head of Department
IMEMO
USSR Academy of Sciences

**Boris L. Nazarov**
Professor, All-Union Institute of Law

**Alexei E. Nesterenko**
Former U.N. Under Secretary-General

**Alexander Ognev**
Head, Department of International
Organizations, IMEMO

**Vsevolod Oleandrov**
Head, Department of International
Organizations
Soviet Ministry of Foreign Affairs

**Sergei Ordzhonikidze**
Deputy Director
Legal Department
Soviet Ministry of Foreign Affairs

**Vadim Perfiliev**
Deputy Head of the Information
Department
Soviet Ministry of Foreign Affairs

90

ANNALS OF LAW

THE HILL CASE

IN mid-morning on a Tuesday in January, 1986, I got a phone call from Richard Nixon. "Did you see Tony Lewis's review of that book in Sunday's *Times*?" he asked. "Why don't you check it out? Maybe we'll find out what really happened in that case."

"That case" was Time, Inc., v. Hill, a privacy dispute that had been decided by the Supreme Court on constitutional grounds in 1967. "That book" was a new volume titled "The Unpublished Opinions of the Warren Court." In the book the Supreme Court historian Bernard Schwartz, a professor at New York University School of Law, analyzed more than a dozen major Warren Court cases—including Time, Inc., v. Hill—in the light of previously secret draft opinions and Justice-to-Justice memoranda that had been made available to him as he was doing research for a biography of Earl Warren.

The writings analyzed by Schwartz reveal intense, sometimes bitter internal debate within the Court over outcome and language; complex political alliances among the Justices; and details of strategies, tactics, logrolling

compromises, and occasional complete reversals produced by the opinion-writing procedures of the Court. The process, which has generally been cloaked in absolute secrecy, turns out to be not very different from the well-known back-room lobbying among legislators. By far the most acrimonious political struggle described in Schwartz's book is the clash between Justices Hugo Black and Abe Fortas over Time, Inc., v. Hill.

Now, what does all this have to do with Richard Nixon? Why was he interested in pursuing the story of the Hill case twenty years after it was decided? What did he think that the Schwartz book might reveal?

The answers to these questions call up fragments of personal memory—a collage of law, politics, and personality covering almost a quarter-century. The memories touch on a large expansion of the public events and public names of that period: the "Nixon comeback" of 1962-68; the contest between the Hugo Black-William Douglas "absolutists" and the Felix Frankfurter "balancers" on the Supreme Court; the rise and fall of Justice Fortas; the legal origins of the present-

day tension between rights of the press and rights of privacy; and, around the edges, even a little bit of China, Vietnam, and Watergate. The fragments fit together into a snapshot of one of those moments in the nineteen-sixties when our politics, for better or for worse, reached a turning point.

IT is said that Richard Nixon, after his defeat in the 1962 California gubernatorial election, was persuaded (I think it more likely he decided on his own) to go East to establish a new venue for his contingent careers in law and politics. Elmer Bobst, chairman of the Warner-Lambert Pharmaceutical Company and a paterfamilias to the Nixons, brought him together with Warner-Lambert's law firm of Mudge, Stern, Baldwin & Todd. After all the shuffling, the firm emerged with the name Nixon, Mudge, Rose, Guthrie & Alexander. I had been with that firm since my graduation from Brooklyn Law School, in 1949, and by 1963, when Nixon joined the firm, I was more or less its chief of litigation.

As a matter of self-interest and personal curiosity, I took it upon myself to help Nixon adjust to the jargon and the style of a Wall Street law firm. Although I was not a Republican, I was not much of a Democrat, either, so the task of fitting the firm and its new senior partner together did not involve any great ideological deformation for me. And, while I was interested in politics as a form of litigation and in Nixon as a part of history, my main objective was to involve Nixon with legal work that was suitable to his talents and his public standing.

Working with the other senior members of the firm, Nixon was quickly successful in attracting and handling corporate clients. Finding the right piece of litigation for him to "go public" with took a little more time. The opportunity came when a case I had tried to a successful conclusion before a New York State court jury in 1962 went to the United States Supreme Court. The New York jury had decided that Time, Inc., had violated the privacy of our clients, the Hill family. Time, Inc., had appealed.

The decision of the Supreme Court

91

to hear the case established that public issues of large consequence were involved. It also offered an attractive political twist: Richard Nixon, who had apparently passed from the political scene, arguing for the right of privacy against one of the nation's largest publishers. I suggested to Nixon that he argue the appeal, the clients joined in the request, and Nixon agreed to do so.

Nixon believed that he ran a large risk, because some of his old ideological enemies now sat on the Court and would have their knives out for him. But he also saw that his emergence as a skilled Supreme Court advocate could form a valuable part of people's perception of him as a "new Nixon." Moreover, the Hills were sympathetic clients —a normal middle-class mother and father who valued their privacy and their children's. In arguing their case, Nixon would have the best possible forum in which to express his deeply held feelings about press abuses of privacy. He would be seen as a disciplined advocate respectful of constitutional principles, not as the bitter politician who after losing the California gubernatorial race had lashed out at the press in his famous "last press conference."

So the stage was set for Nixon to make his début before the Supreme Court.

ON September 9, 1952, three convicts escaped from the federal penitentiary, in Lewisburg, Pennsylvania, and, a few days later, after stealing an automobile, shotguns, ammunition, and money, invaded the home of James and Elizabeth Hill, in the Philadelphia suburb of Whitemarsh. Hill, his wife, and their three daughters, aged eleven, fifteen, and seventeen, and twin sons, aged four, were held hostage for nineteen hours. Except, of course, for the general restraint, the convicts behaved in a decent, even gentlemanly, manner toward the terrified captives, and left without doing harm to the family. Ten days after the event, the convicts were apprehended on the Upper West Side of Manhattan. Two of them and a detective were killed in a gun battle, and the third was captured alive.

The immediate aftermath saw a great deal of public and press interest, particularly while the convicts were still at large, and also some open speculation that there had been acts of sexual violence involving Mrs. Hill and her

teen-age daughters. The Hills tried to keep publicity to a minimum, emphasizing the absence of violence and otherwise declining all comment.

That November, the Hills moved to Connecticut, and they subsequently took pains to shield the family from reminders of the bizarre episode. They rejected all requests for magazine interviews and all offers of payment for their collaboration in telling the story of the incident. "For the best interests of our children," Mr. Hill wrote in answer to one such request, "we have felt that it was best to avoid any course of action that might remind them of our experience in September 1952. Following this policy we have refused all radio, television, magazine, newspaper, etc. offers connected with that experience."

Gradually, public curiosity died away.

More than two years later, in the February 28, 1955, issue of *Life*, a review of a new Broadway drama, "The Desperate Hours," described the play as a "reënacted" account of the ordeal of the Hill family. Neither the word "fictionalized" nor any word suggesting fictionalization appeared in the piece. The review was part of what *Life* called a "True Crime" story, and it was accompanied by photographs of the Hills' former home, in Whitemarsh. Members of the cast of the play, which was then having a pre-New York tryout in Philadelphia, were transported by *Life* to what it called the "actual" house and were photographed there in episodes from the play. Some of the large photographs depicted a series of vivid scenes of violence—scenes of a kind that the Hills had repeatedly said had not occurred during the actual incident.

Because of the *Life* story, the incident once again became a central part of the Hills' life. The original curiosity and speculative questioning flared up, with increased vigor, in their new community. A few days after the article appeared, Mr. Hill called upon a Harvard classmate, Randolph H. Guthrie—who was my senior law partner—and asked him to take legal action. The case was assigned to me for investigation and trial. Our first step, of course, was simply to ask *Life*

to print a retraction of the story. *Life* refused. We filed suit.

Extensive pretrial discovery took place. It revealed that the *Life* article and the ensuing reëmergence of the Hill family into the public eye were essentially the result of a coincidence: the pre-Broadway tryout of "The Desperate Hours" was in Philadelphia, and thus near a spot—the former Hill home—where a superficially similar incident had occurred. A chance remark

about this coincidence in a brief corridor conversation between *Life's* entertainment editor, Tom Prideaux, and a colleague stimulated the idea of a review with an unusual "news" angle—something that to *Life*, as a photo-news magazine, was of particular interest. The idea was described

by one of *Life's* editorial people as a "good gimmick." The trial evidence, however, showed that the relationship between the Hill incident and "The Desperate Hours" was extremely thin. The theme of the play had been drawn in a general way from a large number of hostage cases, of which the Hill incident was only one, and the plot was fundamentally different from the actual Hill case.

The novel "The Desperate Hours," by Joseph Hayes, and the play and motion picture that were adapted from it tell the story of a two-day reign of terror by three escaped convicts who invade a home in suburban Indianapolis and hold a family hostage while the leader of the convicts waits for a woman friend to bring him money and attempts to execute a complex scheme to murder a deputy sheriff against whom he has a bitter grudge. Familiar elements of pulp fiction—the brutality of sadistic criminals, the terror of ordinary persons held in bondage outside the law, sordid sexual implications, sudden eruptions of violence, a family rising to heroism—are smoothly combined to give "The Desperate Hours" its dramatic force. The *Times'* review of the book, "Nightmare at the Hillliards'," observed that the "story-line is a familiar one (what happens when a trio of mad-dog convicts hole up in an average home after a jail break)," but that Hayes had "milked the last drop of

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92

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horror from his macabre situation.”

In conventional crime-fiction style, the tone of the play is set at the outset by the gang leader's warning to the mother when he enters the house: "Take it easy, lady.... You scream, the kid owns that bike out there'll come home an' find you in a pool of blood." From start to end, the convicts have contempt for the family and their home. The convict leader, Glen Griffin, tells Dan Hilliard that Hilliard reminds him of his own "little punk"

of a father. The family is repeatedly cursed and abused. The father is beaten into unconsciousness; his young son is viciously manhandled; the father is forced to hit him as punishment for the boy's defiance of the con-

victs; an elderly trash collector is brutally murdered; the mother is pushed into episodes of mounting panic. Robish, the dull, hulking lifer, drunkenly menaces the daughter: "Lift your arms, baby. I'm gonna search you personal." The mother and son are to be taken away by the convicts and used as human shields. The family fights back. The son tries to get a message out to the police; the daughter clashes with the convicts, biting the wrist of one of them to get his gun away; the daughter's boyfriend is shot in a rescue attempt; the father ultimately counters violence with violence.

A central theme of the novel and play is the subjection of the father and daughter to the will of the convicts. They are forced to leave the house to help the convicts with their criminal plans to the extent of being virtual accessories in a plot to murder the deputy sheriff. As his family is abused, his son attacked, his daughter threatened, his home turned into a shambles of verbal filth and horror, the father is driven to the point of almost committing murder. A final act of imagination and daring by the father forces the convicts out of the house and saves the family. The gang leader, in a state of shock and under the delusion that he and his brother are once again teen-agers defying their hated father, runs from the house, brandishing an empty gun, and is shot down on the front porch by the deputy sheriff. As the play ends, the father stands on a stairway as the other members of the family return, one by one, to what the play's script describes

as the "havoc" that was their home.

Obviously, as Joseph Hayes testified at the trial, "The Desperate Hours" was not in any sense the story or a reenactment of the Hills' experience. The principal elements of "The Desperate Hours," and the elements that made it a sensational and commercially successful melodrama, are bloody violence, drunkenness, profanity, sex, and heroism. These are precisely the elements that were absent from the Hills' actual experience. The Hills' calm ac-

ceptance of their difficult and frightening situation and the surprisingly civil behavior of the convicts were the antithesis of the drama of terror and violence which Hayes created and which became "The Desperate Hours"—

so much so that the civility in the Hill incident was the focus of *Time* magazine's original news account of the actual episode, which bore the title "House Party."

Hayes had made these facts clear in a news article that appeared in the *Times* in January, 1955. "Instead of researching any of the specific 'cases'" of hostage-taking, he wrote, "I found it best to let my imagination play with the idea." *Life's* writers and editors read this article and other, similar pieces that Hayes had written elsewhere, at the time the Hill feature was in preparation.

Pretrial discovery also revealed that *Life's* editors had decided that *Life's* "True Crime" format required a highly explicit connection between the Hill incident and the play under review in order for the article to make sense. Accordingly, a series of drafts of the article's text showed a gradual tightening of the relationship. In the first draft, the connection was a generalized one. Then *Life's* editorial process transformed it. The final, published version categorically described "The Desperate Hours" as a re-creation of the Hill incident. "Americans all over the country" who "read about the desperate ordeal of the James Hill family," said *Life* boldly, "can see the story reenacted in Hayes' Broadway play based on the book."

The core of *Life's* response to the Hills' claims was that, notwithstanding disputes concerning its accuracy, the article was protected by the First Amendment. To this the Hills responded that deliberate falsities (*Life's*

work

THE NEW YORKER

93

saying that there was a close factual
link between the play and the Hill
incident, and the portrayal of the Hills
in a false light) constituted the article's
main assertions. They argued that in
spite of the realistic format the article
was not news but fabrication. The
falsities were a wrongful and action-
able invasion of the Hills' privacy for
purposes of commercial exploitation
rather than a constitutionally protected
report or comment on newsworthy
matters.

After a two-week trial in 1962, the
jury found in favor of Mr. and Mrs.
Hill and made a large award of dam-
ages. (At the insistence of the Hills, no
claim was made on behalf of the five
Hill children, so that they would not be
exposed to the litigation.) The decision
establishing the liability of Time, Inc.,
was affirmed by a 4-1 vote in the New
York State Appellate Division and
then a 5-2 vote in the New York State
Court of Appeals.

RICHARD NIXON'S preparation of his Supreme Court argument in the Hill case began in 1965, shortly after the Court granted Time, Inc.'s, application for an appeal. Just the previous year, in the landmark case of New York Times Co. v. Sullivan, the Supreme Court had decided that a public official suing for libel was obliged to prove that the offending material was published with knowledge of falsity or with reckless disregard of the truth.

Sullivan grew out of the civil-rights
struggle of the early nineteen-sixties
and the deadly hatred it engendered in
many Southern whites for Northern
liberalism and its agents. Sullivan him-
self, an elected city commissioner of
Montgomery, Alabama, whose duties
included supervision of the police de-
partment, brought suit in the Alabama
state courts charging that he had been
libelled by a full-page advertisement in
the *Times* which depicted, in dramatic
terms, alleged violations of the rights
of local black citizens by the Mont-
gomery police. The advertisement had
been placed by the Committee to De-
fend Martin Luther King and the
Struggle for Freedom in the South, a
militant civil-rights organization.

The advertisement was vouched for
by a responsible person and signed by
many well-known figures, and it
seemed accurate on its face. The *Times*
therefore published it without making
a separate check on its accuracy. No-

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94

where in the ad was any charge made against Sullivan by name. Yet the Alabama Supreme Court held that the impersonal statements in the ad were libellous per se—that is, without any need for the plaintiff to prove he had suffered damage—and upheld a then-huge jury verdict for the plaintiff of five hundred thousand dollars.

The Supreme Court reversed the decision on broad constitutional grounds, saying that the challenged advertisement was well within the zone protected by the First Amendment and that political speech of this sort must be protected even if it contains errors, or else political debate cannot be truly free. Therefore, the Court said in Sullivan, a public official cannot collect libel damages for falsehoods relating to his official conduct "unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

In the wake of Sullivan, fresh aspects of First Amendment law were being debated in the courts. The Hill case involved a first look by the Supreme Court at competing claims of individual privacy and institutional press freedom in the post-Sullivan world.

The legal stakes were substantial, and for Nixon, who was preparing to seek the 1968 Presidential nomination, the political and personal stakes were just as high. He could not afford to stumble before his old political adversaries or be seen as simply continuing his war against the press by new means, in a new forum. The only possible answer to these concerns was, as Nixon saw it, meticulous preparation, and I consequently had the opportunity during 1965 and 1966 to see how Nixon prepared himself for a professional "crisis" such as periodically marked his public career.

He began by reading and virtually committing to memory not only the trial record and the state-court decisions in the Hill case but copious quantities of additional background material, including federal and state case law, law-review articles, and philosophical writings on libel and privacy. He read his way through the First Amendment analyses of various law professors and philosophers, including Alexander Meiklejohn, Thomas Emerson, William Prosser, and Edward Bloustein. Among Nixon's read-

ings was the Meiklejohn Lecture, on the subject of the First Amendment, delivered at Brown University by Supreme Court Justice William Brennan in 1965. The famous Nixon yellow pads accumulated, filled with summaries, questions, and preliminary lines of oral argument. As his grasp of the issues tightened, requests came to me for memoranda on fine points that needed elaboration. He scribbled endlessly on drafts and galleys of Supreme Court briefs. As the day of argument approached, there were almost continuous "skull sessions"—question-and-answer sessions with his law-firm colleagues which simulated a court argument. He worked particularly hard at grinding his points down to their essentials, using trial exhibits—especially blowups of photographs and drafts of the offending text—to give his argument its maximum impact. His preparation was almost obsessive; he left nothing to chance. His behavior was not only a matter of professional pride but a sign of his determination not to let his recent defeats drive him from the political arena.

Much of the preparatory work for the argument took place on the margins of Nixon's political and personal life—at lunches and dinners, or during trips to clients' corporate board meetings. A leisurely luncheon with his old friend Edward Teller, for instance, at the Recess Club, on Broad Street, gave him an opportunity not only to discuss strategic nuclear theory but to formulate some of his ideas on privacy.

Nixon particularly valued a com-

APRIL 17, 1989

panion on airplanes, to protect him from being badgered by well-wishers. Before burying himself in his notes and yellow pads at the start of a flight, he instructed me to answer his questions but otherwise leave him alone. One trip on which I performed my mixed functions of debate coach and security guard took us to Palm Beach. Nixon was scheduled to speak in Florida to members of the board of a company called Investors Diversified Services. The evening before the speech, we went to the home of Warner-Lambert's Elmer Bobst, who lived nearby, for drinks.

We went out for a pleasant dinner at a country club with Bobst and his Lebanese wife, Dodo. Then Nixon and I were driven to the vicinity of Miami, where he was to speak the next day. It had been arranged for us to spend the night at a new house in a real-estate development, but Nixon took one look at the place and his well-honed political instincts and suspicions told him that in the morning the developers would expect to get pictures of him in the house, in order to use his name and photograph for publicity purposes. He ordered the driver to take us back to the Bobst house, about forty miles away.

When we arrived, after midnight, the gates were locked. A high wall surrounded the estate. What now? Nixon told the driver to come back for him at 7:30 A.M. and then said, "Come on, Garment. It's over the wall we go." So over we went, two New York lawyers, briefcases and all. We were able to get into a pool house, which had twin beds, so we went to bed like kids at summer camp.

That night, Nixon talked until we fell asleep. He told me that his greatest interest was foreign policy; he talked about world affairs at length, and said he felt that his life had to be dedicated to the great purposes he had in this field. This man, so fiercely determined to stay in the political arena—for which he was in many ways so ill-suited—told me that he felt himself driven to do so not by the rivalries or ideological commitments of domestic politics but by his pacifist mother's idealism and the abstract, intellectual attractions of foreign affairs. That was the night's theme. Nixon declared that he would give anything or make any sacrifice to be able to utilize his talents and his experience in foreign affairs.

THE NEW YORKER

95

Making money, belonging to exclusive clubs, and playing golf were not his idea of a worthwhile life, he said. Up to then, he had lived "in the arena," and that was where he wanted to be, even if it meant "a much shorter life."

The next morning, I got some confirmation of this view of Nixon. When I woke up, Nixon had left to make his speech. Bobst appeared unsurprised to find me on his premises; Nixon had apparently alerted him to my presence earlier that morning. Sitting by the pool, Bobst and I had a long conversation, mostly about his life and his hopes for Nixon. Bobst, a thoughtful, kindly, public-spirited man who spoke in a basso-profundo voice and looked a bit like Mr. Magoo, was a minister's son. He was known as a stickler for ethics in corporate life, and had played an important role in funding cancer research. His basic views were those of an authentic conservative and a businessman. He was convinced that Nixon would be President, and he told me that he and Nixon had often talked about what Nixon would do in the White House.

Bobst was deeply interested in China, and he spoke to me at some length about that country's history, future, power, beauty, and importance. He also told me that he and Nixon felt that "the most important thing" to be done in world affairs was to "bring China into the world." I gathered that this subject had often been discussed by Nixon and Bobst but that, while they agreed on it, they disagreed on what to do about Vietnam. Bobst thought that it was a disaster that the United States had to get out of quickly, whereas Nixon insisted that the United States' position in Vietnam was that of "a cork in the bottle," and that pulling the cork out could have unknown and possibly catastrophic consequences. As Bobst talked, however, I saw that the real issue between them was whether to get out quickly or slowly. According to Bobst, Nixon accepted the view that Vietnam could not be "won" and the United States would eventually have to withdraw. The pace of withdrawal and the hope that an independent South Vietnam could be preserved were the only real subjects of debate.

Later, on the flight back to New York, Nixon returned to his yellow pads. I did the eating and drinking, and read part of a novel. There were

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no questions. There was no more camp
talk. China and Vietnam faded away.

NIXON's process of preparation continued until the morning of April 27, 1966, when I anxiously summoned him from the lawyers' lounge in the Supreme Court just before the Court was scheduled to convene. He was still flipping through his yellow pads. When I tried to move him along, he laid a restraining hand on me and said, "Never rush into a public place." We strode slowly to our counsel seats, as if to the strains of "Hail to the Chief"; of course, only he heard them.

At precisely ten o'clock, the nine Justices appeared silently from the red-velvet-draped background, moved to the bench, and took their seats quickly. Chief Justice Warren called the first case, an antitrust case in which the government was trying to force the Pabst Brewing Company, of Milwaukee, Wisconsin, to give up another beer company it had acquired some years before. Then, shortly after noon, he called the appeal in Time, Inc., v. Hill.

Arguing for Time, Inc., Harold Medina, of Cravath, Swaine & Moore, focussed his oral argument on two main points. First, the *Life* article's "falsity" was of an incidental and innocent nature. The article, he said, was basically an accurate depiction of the connection between the Hill family's captivity and the story of "The Desperate Hours." It was therefore constitutionally protected as comment on news. Medina's oral argument dealt principally with this issue, and thus with the similarities between the Hill incident and the play.

Medina also argued that the New York privacy statute involved in the case was overbroad on its face, because it penalized publication even of newsworthy material if the publication was primarily "for the purposes of trade." This argument was drawn from an obiter dictum—an observation by a judge that is not a necessary part of the court's decision—from a single judge, Benjamin Rabin, in a lower-court concurring opinion. Judge Rabin's statement was murky but could be read as suggesting that even truthful and newsworthy material might be actionable if it was intended solely for commercial purposes. If this was the case, Medina argued, the New York statute would be unconstitutional.

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Nixon's oral argument emphasized the point that Judge Rabin's lone statement was only an incidental remark, not an integral part of court reasoning in the case. The law of New York, Nixon argued, had been settled otherwise by sixty years of decisions stating that a truthful news account was constitutionally protected. Nixon's main effort, apart from this argument, was to demonstrate that the method by which the text and photographs of the *Life* article had evolved proved that the magazine had created a fictionalized description of "The Desperate Hours" as a "reënacted" account of the Hill incident—in other words, a deliberate fabrication and an admitted "gimmick," designed to justify the use of the former Hill home as the "True Crime" site of a photo-news review of the play. This, in Nixon's submission, satisfied the constitutional test for liability, including the then only two-year-old formulation in New York Times Co. v. Sullivan, even though the original trial of the Hill case had taken place before Sullivan was decided and therefore had not met the Sullivan arguments head-on.

The atmosphere of the Court during the argument provided surprises and intimations. Both lawyers quickly displayed a comprehensive grasp of High Court forensics. Medina, a senior litigation partner at Cravath, had been around the track many times; the surprise was Nixon. In this, his first argument in an appellate court, he sounded like a polished professional of the bar—his footing confident, his language lawyerlike, his organization of material sure and clear. He had true “bottom,” responding to dozens of tough questions, and the Court clearly relished the performance. John MacKenzie, who was then covering the Court for the Washington *Post*, wrote that in Nixon's presentation the Court and spectators “heard one of the better oral arguments of the year.” At their luncheon after the argument, the Justices, according to “Super Chief,” Bernard Schwartz's judicial biography of Earl Warren, expressed surprise that Nixon had done so well. Bruce Allen Murphy, in his book “Fortas: The Rise and Ruin of a Supreme Court Justice,” notes that among comments circulating around Washington at the

time was that of Justice Abe Fortas, who said that Nixon made “one of the best arguments that he had heard since he had been on the Court,” and that, with work, he could be “one of the great advocates of our times.”

The questioning and comments in the Court were ambiguous and tentative, yet furnished some interesting clues. The Chief Justice and Justice Fortas were almost outspokenly on Nixon's side. Chief Justice Warren asked the question that enabled Nixon to address what we thought was the central issue of the case:

MR. CHIEF JUSTICE WARREN: Suppose that *Life* magazine, instead of doing this the way it did, said that this play of Mr. Hayes' is *reminiscent* [italics added] of the Hill incident. . . . Would you say . . . *Life* could do that without violating your law?

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MR. NIXON: Mr. Chief Justice, cruel as it might be . . . I believe that would not be a violation under New York law.

Justice Potter Stewart also seemed favorable, though with considerably less force. Justice Black, in keeping with his long-standing position that any restraint on press freedom, including libel and privacy claims, was unconstitutional, was clearly negative, indicating as much in a persistent line of questioning about whether New York State's privacy statute put impermissible limits on freedom of speech. Justice Douglas, who shared Black's absolute view of First Amendment press protection, was silent. Justice Byron White was openly troubled by Medina's argument on statutory overbreadth and by other technical issues, and wondered aloud whether the New York law might be read as unconstitutionally permitting a suit based on a truthful and newsworthy publication if it was shown to be for purely commercial purposes. The preliminary disposition of Justices John Harlan and Tom Clark was unclear. Justice Brennan's comments were neutral and brief.

Nixon and I came away from the argument feeling that we had scratched out a narrow majority. A sufficient number of Justices seemed to feel that the case involved a real wrong by the *Life* editorial staff and that significant harm had been done to nonpublic people who prized their privacy. The forceful statements by Warren and Fortas were particularly surprising and encouraging. Nixon later commented that these two were political men and so knew firsthand how fierce and lacerating the press could be when it fastened on a target. They would know that for private persons unwanted and false public exposure could be, in Nixon's words, "as traumatic as a physical blow."

We returned to New York at the end of a day that had started a little after dawn and, for Nixon, who worked on the Washington-New York plane, continued until we parted at LaGuardia. I went home, drank a couple of vodkas, and fell into an exhausted sleep.

ARRIVING at work at about ten the next morning, I found on my desk a five-page, single-spaced

98

APRIL 17, 1989

memorandum addressed to me from Nixon. This document is the most in-structive example of Richard Nixon's tenacity and work habits that I've read in all the time I've known him, includ-ing the Presidential and post-Presiden-tial years. It was prepared shortly after we had parted at the airport. Upon arriving at his Fifth Avenue apart-ment, overlooking Central Park and a few floors below the apartment of Nel-son Rockefeller, Nixon had dictated a tape of detailed self-critical comments on his own argument and an assess-ment of points, suggested by the Court's questioning, that he would now handle differently, and the tape had been transcribed by Nixon's secre-tary, Rose Mary Woods, early the fol-lowing morning. There was no reason to believe that the case would be re-argued (a rare occurrence); it was over as far as we were concerned, and the memorandum was a pure exercise in post-argument analysis, an act of intel-llectual self-criticism.

TO: LEONARD GARMENT
April 28, 1966

FROM: RICHARD M. NIXON

Now that the case is over, here are some of the points I believe deserved more em-phasis in the oral argument. I only wish there were some way we could ethically transmit some of these thoughts to the clerks who will be helping the justices write their brief!

### Rabin Opinion

One vulnerable point is that Medina was able to leave the impression that by reason of the Rabin opinion, New York leaves hanging over defendants the pros-pect of liability solely on the basis of "sens-tional news stories which increase circu-lation." We know that this is not what Rabin meant and as a matter of fact I could have pointed out that Medina in his briefs had left open the possibility of liabil-ity where "purely private facts were raked up which outraged community sensitivi-ties," etc.

I think I should have precisely nailed the point that this was dictum and that I should have gone further and given an illustration of the case—perhaps the pic-ture of the person with the deformity—used without relationship to any news story. [This was a reference to Barber v. Time, Inc., a case in which *Time* maga-zine published, in its Medicine section, an unauthorized photograph of a woman with a rare disease.]

### The Facts

I think it would have been most effec-tive after completing my analysis of the LIFE pictures to turn to Justice Fortas and to have directly replied to the question he asked Medina as to whether there had been some "rather ugly incidents" in the play. Medina as you recall answered that question in the negative. I could have then

briefly recounted in a most effective way the murder of the trash man, the killing of two of the convicts, the wounding of the boy friend, Hank's "grabbing" Cindy, even though he may not have "pawed" her, the beating of Hilliard which left him uncon-scious, Hilliard's being forced to beat his son, and the constant use of profanity in its ugliest forms throughout the play.

Nixon, as the world learned from the Watergate tapes, was quite capable of using profanity in private. Public display was the place where he, with some consistency, drew the line. The memo went on:

### LIFE's Responsibility

I should have read that dramatic inter-change in the record where you asked Prideaux if he had read the green [editing file and he answered, "yes." I could have then followed that up by asking the Judges to read the contents of the file which included Hayes' story as well as the cur-rent news events and then to reach their own judgments as to whether after reading that file and reading the play, any one of them would have proceeded to "assume" that the play was a reënactment of the Hill incident.

I think it would have also been most effective for Brennan's sake to have pointed out that this was most different from *New York Times* [v. Sullivan], where the publisher had not originated the story and where the facts which prove the falsity of the statements appeared in their general files rather than in the story file. Here the publisher definitely read the file which proved the falsity of his statements. In *New York Times* there was no proof that he had read the true statements.

### The Importance of Falsity

While we did get across the point that it was necessary to plead falsity in order to meet the New York definition of "purposes of trade," I think we could have made points by attacking this issue from another angle.

This is [mistakenly being seen as] a First Amendment case. It is generally agreed that neither [knowingly] false statements nor commercial statements deserve First Amendment protection. We therefore could have pointed out that our case did not present a First Amendment problem, not only because the statements were "commercial" but also on the independent ground that they were false. In other words, if the Court was taken in by Black's monologue about all papers being published for profit, they could have still held that clearly apart from the "purposes of trade," i.e., the commercial aspect, the

very fact that the statements were false should have been sufficient to deny them First Amendment protection.

This point, of course, is made most ef-fectively in the brief. But I think in view of the fact that Fortas zeroed in on this point, it might have been quite effective to emphasize it in the oral argument. The heart of the case, in other words, is that false statements invading privacy just like false statements injuring reputation in pri-vate libel cases should not have First Amendment protection, whether the false-hood was negligent or with malice.

I then could have quoted from Bren-nan's Meiklejohn Lecture in which he quoted Meiklejohn as follows: "When one injures another by tongue or pen his verbal attack has nothing to do with the business of governing unless it affects the qualifica-tions of a candidate for public office." Brennan, I think, would have been most impressed by my pointing out that while this quote related to private libel (i.e. false statements damaging reputation), it was on all fours with regard to our case where false statements were used to invade pri-vacy.

I think it would have been very effective to tell the court that we recognize that in this case of first impression the court would want in the first instance to take a precise, limited step and that our case provided a most classic example which could be found for that kind of step.

### LIFE's Motive

I think it would have been helpful to give the Court an idea as to the true nature of the right of privacy and how it differs from defamation. I obliquely an-swered Medina's constantly reiterated contention that LIFE was not trying to hurt the Hills but actually because of its laudatory lies was doing them a favor. What I intended to point out if time per-mitted was that as distinguished from libel (where while it is not a necessary ingredi-ent to the tort it often is present) intent to hurt the plaintiff through the use of false-hood is completely irrelevant in the tort of privacy. LIFE did not intend to hurt the Hills by its publication even though it did not show them the courtesy of asking con-sent before using their name. LIFE just *didn't care* about the Hills. In other words, LIFE was not trying to *hurt* the Hills; it was trying to use the Hills to *help* itself. This is the essential element in those pri-vacy cases under the New York statutes where false statements are used.

### Defendant's Admission on the Difference Between the Hill Incident and the Play

From a purely professional standpoint, my greatest regret is that at the conclusion of my analysis of the six photographs in the LIFE story, I did not turn to the Appel-lant's brief and read the statement "If this had been a documentary it would have been the shortest one-act play in history." In other words, LIFE by its own admission said that the play, which they contend was a reënactment, was over two-thirds fiction as far as the Hills were concerned.

Nixon's memo concluded with an analysis of the constitutional underpin-nings of the right of privacy. Nixon found and predicted the problems in-

J.J.S.

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herent in the Supreme Court's free-floating rationale for a general right of privacy, as it was stated in Griswold v. Connecticut (1965), the case invalidating a state ban on the prescription or use of contraceptives. In the course of striking down the Connecticut law, Justice Douglas, writing for the majority, created what had not existed before in constitutional jurisprudence — a constitutional right of privacy more general than anything specifically mentioned in the Bill of Rights. This right of privacy, said Justice Douglas, could not be found in any single constitutional amendment, but could be derived from the “penumbras” and “em brandes,” as he put it, that surrounded the separate clauses.

The muddled language of Griswold brought new confusion to the discussion of the issue of privacy. Griswold became the key authority for the Court's 1973 decision on abortion in Roe v. Wade, and Griswold's confusion, criticized by liberal and conservative scholars, has seriously undermined the legitimacy of Roe for the past sixteen years. More than twenty years after the Griswold decision, in 1987, the confirmation hearings on the nomination of Robert Bork to the Supreme Court were filled with echoes of the problem Nixon saw so presciently.

Some of Griswold's effect on the privacy debate, though, was clear soon after the decision. During the Hill arguments before the Supreme Court, Medina, evidently not wanting to be thought an enemy of privacy, remarked, “Now, it just so happens there is this right of privacy. Whether you find it in the Fourth, Fifth, Ninth, or Fourteenth, I don't know. We recognize it and are for it.” Whichever right of privacy Medina was talking about, it was certainly not the privacy right in the New York State statute at issue in the Hill case.

Nixon wrote in his midnight memo:

The Constitutional Nature of the Privacy Right

I think what would have been most helpful to the Court in writing the opinion would have been a brief statement clearing up Medina's fuzzy reference to a right of privacy being a constitutional right emanating from the Fourth, Fifth, Ninth and other Amendments (in other words, using the Griswold analogy). This kind of analysis, if followed to its conclusion, is both inaccurate and potentially dangerous from a constitutional standpoint. In Griswold, it was essential to find that there was a "constitutional right to privacy in marriage" since the issue there was the

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APRIL 17, 1989

power of the state to impair that right. Unless it had been found that the right of privacy in marriage had constitutional status, the Connecticut statute could not have been declared unconstitutional.

Here the question is not the power of the state to infringe on a right but the power of the state to recognize and implement a right.

I then intended in my opening statement to pursue the subject by pointing out that there was no "constitutional right to repudiation" and that privacy by analogy should be treated in the same way. The dangers of the other analysis are obvious. First, let us take the state of Wisconsin which had been the subject of the beer argument earlier in the day. Wisconsin is one of the four states which [do] not recognize the right of privacy either by statute or common law. In the event a state court in Wisconsin denied recovery to a plaintiff in a privacy action, that would have been "action by the state" under the doctrine of *Shelley v. Kraemer* and the plaintiff could have appealed to the Supreme Court on the ground that his constitutional right of privacy had been infringed by the state court's action in refusing to recognize it. A parallel danger, perhaps presenting even greater problems as far as the Court is concerned, is that if we should contend that there is a constitutional right to privacy emanating from the Ninth Amendment, the Court would then have the problem in every case to determine whether the right of privacy under the Ninth Amendment or the right of free expression under the First Amendment should prevail where the two come in conflict. After all, the Ninth Amendment states in explicit language that the spelling out of rights in the 8 amendments does not "disparage" other rights which are retained by the people and the state. I think this analysis would have been helpful to the Court; I have not seen it in any of the Law Review articles; and also it might eventually have ended up in an opinion, assuming an opinion is written which goes to the heart of the subject.

I then, of course, would have gone on and pointed out that the right of privacy should be treated like the right to reputation in libel cases as being one of those areas where the state has the power, under the Ninth and Tenth Amendments, to give redress to private citizens where they are injured by other private citizens.

While this analysis would tend to downgrade the right of privacy for which we were contending in our case (below even the position Medina in his rather vague and muddy way was implicitly recognizing) it would have given the "definers" on the Court a hard-rock base of reasoning for recognizing the privacy tort in a very definite, limited, constitutionally defensible way.

The memo revealed two things that were on Nixon's mind that night. Both of them had apparently nagged at his perfectionist soul on our return trip to New York. First, he believed he had missed opportunities to highlight factual arguments that would have helped place the Hill case farther outside the

zone of constitutional protection defined in Sullivan. More important, he regretted his failure to give fuller and more precise expression to his intuition that Justice Douglas's weak reasoning in Griswold was going to get the Court into deep and dangerous constitutional waters.

His objective in the argument he wished he had made would have been to point out that the Court already had a serious problem in its future because of the privacy right created by Griswold and should not compound it by treading still further on state libel and privacy laws. He knew that by making this argument he would demote the concept of privacy from the high status that Griswold had given it—an ironic task for James Hill's lawyer. He thought, though, that if he had laid greater stress on this point the Court might have been more hesitant to impair the vitality of the New York State privacy law governing the Hill case.

May and most of June passed without word from the Court. On June 20th, the last day of the term, we had disappointing news: An order had come down restoring the case to the docket for reargument in the fall and specifying the questions to be addressed, most of them dealing with the coverage of the New York statute, the effect of the Rabin concurring opinion, and the definition of "fictionalization" as it related to First Amendment requirements. These questions reflected the doubts voiced by Justice White during the oral argument.

Reargument on October 18 and 19, 1966, was another smooth, profes-

sional performance by Medina and Nixon, but the atmosphere was now less dramatic, more routine. Nixon had interrupted his cross-country campaigning for Republican candidates in the 1966 midterm elections—a crucial phase of his burgeoning Presidential effort—and had set aside three weeks to focus intensively on the altered array of arguments. I felt that Nixon was even better and more relaxed this time. The Court was active in its questions. But the attitudes and the apparent lineup of opinion had clearly changed—and from our point of view, as it turned out, for the worse.

Justice White was now firmly fixed on his concern about the constitutional problems on the face of the New York statute; Justice Brennan's questions were shaped within Sullivan-case contours; and Justice Black engaged Nixon in a fierce ten-minute colloquy in which neither yielded an inch of ground:

MR. NIXON: The article ["Fiction out of Fact," by Joseph Hayes] is significant... as to the question of whether "The Desperate Hours," the article on "The Desperate Hours" in *Time* magazine and the book and the play were reenactments of the Hill incident....

MR. JUSTICE BLACK: ... it showed where he got his inspiration?

MR. NIXON: The question, Mr. Justice Black, is not a question of inspiration. The question is whether the *Life* article is false or true in stating that the Hill incident was a reenactment, not only in terms of the one word but—

MR. JUSTICE BLACK: That word "reënactment"—you could use many other words. If it would have said "reminiscent," it would have been all right?

MR. NIXON: I would beg to qualify that by stating that in answer to the Chief Justice's question on "reminiscent"—his question was quite explicit, his question was in the event that they had used the word "reminiscent" and then had described the Hill incident as it occurred, would there have been liability, and my answer was no. But that is not what happened here....

It has been our argument and our contention throughout this case that "The Desperate Hours"—the heart of "The Desperate Hours"—is a story of violence and bloodshed; that the heart of the Hill incident was the fact that it

THE NEW YORKER

was one that was distinguished by a lack of violence and bloodshed. And here we have it in the author's own words.

Now, the second point that Mr. Justice Black raised, however, I think also should be commented upon. He referred, quite properly, to the fact that Mr. Hayes had been present at the time that the pictures were taken in the house.

When those pictures were taken in the house, however, it is significant to note what went on in terms of whether the representatives of the defendant discussed with Mr. Hayes the basic question as to whether the article, which was eventually to be written, or at that point "The Desperate Hours" about which pictures were to be taken, whether "The Desperate Hours" was a reënactment.

On that score I refer the Court to page 124 of the record [and] to these questions:

"Question. Very briefly, Mr. Hayes, will you tell the jury whether or not 'The Desperate Hours' is the story of or reënactment of the *Life* episode?

"Answer. It is not a story of—it is not a reënactment of that episode.

"Question." This is the significant one. "Did anybody from *Life* magazine ever ask you whether it was?

"Answer. No, they did not.

"Question. Did you ever tell anyone from *Life* magazine that it was?

"Answer. I did not.

"Question. And you never told anyone of *Life* magazine about any similarities?

"Answer. I did not."

MR. JUSTICE BLACK: Did he not testify in another place, yes, he had? When asked whether he told Prideaux whether there had been a reënactment, Hayes replied, "I told them there had been an incident in Philadelphia?"

MR. NIXON: Exactly. As a matter of fact, he told Prideaux that and—

MR. JUSTICE BLACK: And arranged to get the house?

MR. NIXON: Exactly. And further in this testimony, it will be pointed out that Mr. Hayes, in answer to questions, indicated that the reason that this house was selected was because the play was opening in Philadelphia, and that he could have used any house in Detroit or in California or in New York, or in any other place.

MR. JUSTICE BLACK: Yet in Philadelphia they picked out this house—it

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was some distance from Philadelphia
—and used it?

**MR. NIXON:** The play was opening in Philadelphia, sir. That was the point. The play was opening in Philadelphia, not in New York.

**MR. JUSTICE BLACK:** How did they happen to select the one the Hills had lived in?

**MR. NIXON:** Because that is where the hostage incident in Philadelphia had occurred. But my point is that as far as the selection of the house was concerned, that it was selected because the play was opening in Philadelphia; and [Hayes] testified that had the play opened in another city where a hostage incident had occurred, that he could have used—and he, of course, would have been delighted in order to get publicity for the play, he could have used any other house....

If I could go further, the point to be made is, during this process, the three-month period in which the article was being written, and during the day in which the pictures were being filmed at the house, in which Mr. Hayes was present, not once did the representatives of the defendant question him as to whether those scenes occurred in that house....

**MR. JUSTICE BLACK:** Why should he ask him that question? They both understood it had occurred there, and they went there for that reason.

**MR. NIXON:** The reason, sir, that they should have questioned him was that—and this is the heart of this case; the heart of this case is that the violent episodes pictured in six pictures in *Life* magazine did not occur to the Hills, and *Life* magazine stated, by pictures and by words, that they did.

This is the question that *Life* magazine, the defendant in this case, has not been able to answer, and it has not been able to answer it because it had knowledge; even before they went to the house, may I say, it had knowledge that began from an article in its file—in its file which Prideaux, the picture editor, had read. They had knowledge that as far as this particular incident was concerned, it was one of several that had been read about Mr. Hill, and that the final product was different from any one of them.

The point that we are making in this case is that the *Life* article is false, false in stating by picture, by every editorial device—with no qualification whatever—that the Hill incident was reen-

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acted in "The Desperate Hours"; that "The Desperate Hours" family is the Hill family; that the violence that occurred in "The Desperate Hours"—the father beating the son; the violence in respect to the murder of the trashman; the participation, for example, of the father in a plot—unwillingly, of course—for the purpose of murdering the deputy sheriff; the wounding of a boyfriend—as a matter of fact, there was no boyfriend. All of these incidents, all of them that were in "The Desperate Hours" and made it the hit that it was, did not occur to the Hills.

MR. JUSTICE BLACK: That was a blending of fiction with fact.

MR. NIXON: It was stating fiction was [italics added] fact. It was more than that; it was fictionalizing the Hills. It was using the Hills as commercial props for the purpose of selling more magazines. It was creating a story, rather than reporting a story. And that is the heart of the tort under the New York law. If it had stated—and Mr. Chief Justice Warren very precisely hit this point in his question, if it had stated that this was reminiscent of this item, and then had described the Hill incident as it occurred, then *Life* magazine would not have been liable. But I should also point out, *Life* magazine would not have had a story.

MR. JUSTICE BLACK: Why wouldn't it?

MR. NIXON: Why, it wouldn't have had the story because it wouldn't have been newsworthy.

MR. JUSTICE BLACK: They could certainly have referred to other things in this play?

MR. NIXON: Let us go, then, to why? Why *Life* magazine—when I refer to “*Life* magazine,” I am referring, of course, to an institution, twenty-four senior editors, forty-one other managing editors, and two hundred and eight—

MR. JUSTICE BLACK: You don't think they are all liable?

MR. NIXON: But what I am suggesting is, I am referring to any one of the individuals who may have worked on the article; but in this particular

instance, *Life* magazine, as far as checking on this item, did not do so. And they did not do so because *Life* magazine knew what the truth was. The reason—

MR. JUSTICE BLACK: Maybe they didn't do so because any reasonable person would have thought; as I read this record—

MR. NIXON: Yes, sir.

MR. JUSTICE BLACK: From what this man said, the author, that he did found it on the Hill incident. Any reasonable man would have reached that conclusion, particularly when they took him down to the house and made the pictures.

MR. NIXON: And reasonable men can disagree. I would say that any reasonable man reading the Hayes article, "Fiction out of Fact," which Prédieux did, and which stated specifically that "The Desperate Hours" was different from any hostage incident, then that certainly put him on notice that "The Desperate Hours" was not a reenactment. And certainly it would indicate that the editors of *Life* should check to see whether or not editorially they should strike out the words "somewhat fictionalized," or they should strike out the words "this is the Hills' former home"; whether or not they should change the article to be "The Story of the Hills" rather than

the story of the play. In other words, the head being "True Crime" rather than "The Desperate Hours."

Understand, this is editorial changing and altering the facts substantially for the purpose of making the article, and I quote from *Life's* own editorial staff, "more newsy."

It was [described by *Life*] as a gimmick, an editorial gimmick. And the question is: Are private persons, involuntarily drawn into the vortex of a public issue, as counsel for the appellant has indicated—are private persons by this Court to be allowed, in effect, to be used as gimmicks for commercial purposes in a falsified situation in which, I would suggest here, an editorial organization, the largest in the world, with more resources to question the facts than any other, used them in a fictionalized situation?

MR. JUSTICE BLACK: The commercial purpose you refer to is selling magazines? ... Selling magazines for profit?

MR. NIXON: Magazines are sold for profit.

MR. JUSTICE BLACK: Is there anything wrong with that?

MR. NIXON: Not at all.

Justice Black finally desisted, but he was obviously beyond persuasion. As the questions and comments by the Court proceeded, it seemed clear that

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only the Chief Justice and Justice Fortas were holding fast to their sympathies for the Hills' claim.

THE decision of the Supreme Court came down on January 9, 1967, reversing the New York State Court of Appeals and remanding the case for further proceedings in New York in accordance with the Court's opinion. The vote was 5-4, with five Justices writing separate opinions.

Justice Brennan wrote the opinion for the majority, holding that the trial court's charge did not instruct the jury with constitutional clarity under the now operative rule of New York Times Co. v. Sullivan, which, like Supreme Court decisions in civil matters generally, applied to all cases not yet finally decided and which required a finding that the publication was made with legal malice—that is, with knowledge of falsity or with reckless indifference to truth or falsity. Justices Black and Douglas, in a concurring opinion, repeated their “absolute” First Amendment view that knowing or reckless falsity on the part of the press was constitutionally protected. Justices White and Stewart formed the rest of the majority. Justice Harlan dissented, asserting his belief that a lesser standard than legal malice—namely, negligence—was an adequate constitutional basis for state protection of private individuals from invasions of privacy and from libel.

The principal dissent was written by Justice Fortas, joined by the Chief Justice and Justice Clark. The dissent argued that the trial court's charge, while not a “textbook model,” nevertheless satisfied the standard of New York Times Co. v. Sullivan.

When I learned of the decision, through a telephone call from the Clerk of the Court, I called Nixon, at his apartment. He listened, asked one or two questions about the authorship of the opinions, and then said, “I always knew I wouldn't be permitted to win a big appeal against the press. Now, Len, get this absolutely clear: I never want to hear about the Hill case again.” Without a pause, he turned to some business involving the 1968 campaign.

Ever since hearing in June of 1966 that we would have to reargue the Hill case, Nixon had suspected that for some reason a major change had occurred in the Court's basic predisposition

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tion. I shared Nixon's view, and after the decision I was convinced that something inexplicable had indeed happened between the original argument and the reargument. Over time, though, I gradually overcame my puzzlement and disappointment, and accepted the result as yet another proof that the distant and magisterial action of the Supreme Court may not always satisfy the losing counsel as working fairly in a particular case. I did not totally discount the possibility that Nixon had been correct in fearing that this was an ideological battle his opponents simply would not let him win.

And that was that for the Hill case for twenty years. During those years, I had the lukewarm comfort of seeing libel law turn around in Gertz v. Robert Welch, Inc. (1974), in which the Supreme Court—in an opinion by a Nixon appointee, Justice Lewis Powell—held that the rule in New York Times Co. v. Sullivan was applicable to public officials and public figures but not to private individuals. Ironically, the ultimate effect of Hill had been to sensitize the legal community to the arguments that private, as opposed to public, persons could make in such cases. The distinction had grown more sharply focussed in law-review articles and case commentary in the years between Hill and Gertz.

In Gertz, Justice Powell put it clearly: "States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." He was equally clear about the rationale: "The communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.... He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Under Gertz, the Hill family would have won in the Supreme Court.

Then, in 1985, came Professor Schwartz's "The Unpublished Opinion

of the Warren Court," with its behind-the-scenes internal memoranda and draft opinions of the Supreme Court after the first argument of the Hill case. And when the Anthony Lewis review of the book was published in the *Times* Nixon broke his vow, asking me to read the Schwartz book and see what had happened in "that case."

AT the first private conference of the Supreme Court on April 29, 1966, two days after the original oral argument, the vote was 6-3 to affirm the judgment for the Hills. All the Justices but Black, Douglas, and White agreed with Chief Justice Warren's position that there was no First Amendment problem, because the *Life* article was a "fictionalization of these people's experience and false." The Chief Justice assigned the drafting of the Court's opinion in the Hill case to Justice Fortas, and Fortas wrote a sixteen-page document that made its points in language that verged on excoriation—imprudently so, it turned out.

Few in Washington who knew Abe Fortas on the day he was appointed to the bench would have marked him as an enemy of the press. He came from a lower-middle-class Jewish family in Memphis, Tennessee, a brilliant boy and talented violinist with a huge capacity for high-quality work. His performance gained him a scholarship to Yale Law School, where he became editor-in-chief of the Yale Law Journal. His career included a stint as a Yale law professor and years as one of Roosevelt's New Dealers, at the Agricultural Adjustment Administration and the Securities and Exchange Commission. After the Second World War, he set up law practice with the famed Thurman Arnold. At Arnold & Fortas, later to become Arnold, Fortas & Porter, Abe Fortas flourished financially and politically. He was prominent in the anti-McCarthy forces in Washington in the early nineteen-fifties and argued a number of civil-rights cases pro bono. The most famous was Gideon v. Wainwright (1963), in which the Supreme Court constitutionally guaranteed the right to counsel for indigent defendants in state criminal cases of a serious nature.

Fortas also became the quintessential Washington insider, adviser, and confidant. His most important client in this respect was Senate Majority Leader

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Lyndon Johnson. In 1965, Johnson appointed Fortas to the Supreme Court —over Fortas's very real objections, and at a press conference called without Fortas's knowledge or consent. Thus was Fortas launched on a judicial career.

Fortas's attitude toward the press had grown hostile over the years, partly because of his bruising encounters with it on behalf of his friend Lyndon Johnson. Fortas was also truly stirred by the injustice he saw being done to the Hills. To him, Nixon's presence in the Hill case was incidental; whatever political baggage Nixon was carrying, he also happened to be bearing the right message. And Fortas, being a pragmatist, no doubt admired Nixon's skilled performance under pressure.

In his draft opinion for the Court in the Hill case, Justice Fortas said, "The facts of this case are unavoidably distressing. Needless, heedless, wanton and deliberate injury of the sort inflicted by Life's picture story is not an essential instrument of responsible journalism. . . . The prerogatives of the press—essential to our liberty—do not preclude reasonable care and avoidance of casual infliction of injury. . . . They do not confer a license for pointless assault." Next, he condemned the Life article as "a fictionalized version of the Hill incident, deliberately or heedlessly distorted beyond semblance of reality." Finally, he wrote a passionate defense of privacy, a defense which, according to Professor Schwartz, was "as broad a statement of that right as any ever made by a member of the highest court."

Even as a newcomer to the Court, joining it in 1965, Abe Fortas was a strong, confident figure. His first year was a great personal success. According to Murphy's biography of Fortas, it got "glowing" reviews: the *Times* law reporter Fred Graham called the freshman Justice "a promising member of 'the club'" and a man who was fast becoming "a power on the Supreme Court"; *Newsweek* called him "rookie of the year"; and *U. S. News & World Report* predicted that he could be "counted among those who will set the tone and style of the Court in the future."

One member of the Court, Hugo Black, violently disagreed. Black, who had worn the liberal mantle on the Court since his appointment by Roosevelt,

in 1937, disliked everything about Fortas, and saw him, as Murphy explains, as a "pretender to the throne of leadership" on the Court. Black therefore welcomed the broad scope and the intensity of the Fortas draft opinion in Hill. These weaknesses presented an opportunity to cut Fortas down to size; but for this task Black needed time. During the circulation of draft opinions, Fortas, because of comments by his colleagues, found it necessary to make changes tempering the language of his first draft opinion for the Court and seeking to answer, in particular, Justice White's challenge to the constitutionality of the New York statute. By adroit maneuvering, Justice Black took advantage of these changes. In what Murphy calls a "petulant" note to Justice Fortas, he insisted that because of Fortas's alterations he needed extra time—more than the current term allowed—to rewrite the response he was preparing. Black's hostility, together with White's more specific doubts, persuaded Fortas, as the author of the majority opinion, to agree to reargument, and it was scheduled for the fall term. Meanwhile, Black continued his campaign against Justice Fortas and his draft opinion. To his Court colleagues he said that Fortas's was "the worst First Amendment opinion he had seen in a dozen years." He added, according to Murphy, that "it would take him all summer to write his dissent," which "would be the greatest dissent of his life."

Justice Black's product, an internal memorandum sixteen pages long, was distributed to the Court the day before reargument; it was a blockbuster denunciation of Justice Fortas and his position. It was, as promised, one of the most forceful statements ever made by Black of his judicial philosophy. He attacked the general idea of the "weighing" approach, which when applied to First Amendment issues dictates that in each case the worth to society of freedom of expression must be weighed against the worth of the

individual rights and values threatened by a particular use of that freedom. Then he attacked the weighing approach as applied to the right of privacy in particular, and castigated Justice Fortas's opinion in terms like these: "After mature reflection I am unable to recall any prior case in this Court that offers a greater threat to freedom of speech and press than this one does, either in the tone and temper of the Court's opinion or in its resulting holding and judgment."

An example of Justice Black's ferocity of argument was a contention that Fortas was urging a "general, unconditional, unequivocal 'right to privacy' or 'to be let alone,'" under which, Black argued, "burglars, rapists, robbers, murderer and other law violators would be completely immune from all governmental investigations, arrests, trials and punishments."

Timed for the eve of reargument, Black's intense lobbying and his pre- reargument memorandum had the intended effect. The Court's questioning moved in a direction charted by him and by Justice White. In the first post- reargument vote, on October 21st, the Court switched from 6-3 for affirm- ance to 7-2 for reversal, with only the Chief Justice still strongly supporting Fortas. Before the case was finally de- cided, Justices Harlan and Clark re- turned to the Fortas side, producing a tie vote of 4-4, and that was resolved, finally, by Justice Stewart's vote to reverse. This deciding fifth vote to reverse was obtained by Brennan's ad- dition of a paragraph expressly leaving open the rules to apply in libel actions by private individuals. Stewart had ear- lier expressed concern for the reputa- tion and feelings of private individuals in a concurring opinion in Rosenblatt v. Baer (1966). He wrote to Brennan the day after he read this addition, saying he was now glad to join in Brennan's opinion.

The irony of this struggle is that after all the speculation about how the Court would respond to Richard Nixon, the personal animus that determined the course of the Hill case was not antagonism toward Nixon by any member of the Court. The two Justices who had always detested Nixon's politics—Warren and Fortas—were unshakable defenders of his position in the Hill case. The central clash in Hill was actually between Hugo Black and Abe Fortas.

THE NEW YORKER

Schwartz observes that Justice Black's intense antipathy to Fortas was rather mysterious. It was apparent almost from the day Fortas joined the Court and intensified sharply from that point forward. In Fortas, Black surely saw a philosophical heir to his ancient adversary Felix Frankfurter, the proponent of the doctrine of balancing competing constitutional interests—a philosophy that was deeply offensive to the absolutist soul of Hugo Black. What is clear is that in the Hill case Abe Fortas's old-style liberal, pluralist notion of press freedom as a value to be weighed against other values gave way to Black's idea of press rights, which was much larger and more uncompromising in its claims. In time, the Court would come around to Fortas's view.

EARLY one morning in 1970, a year or so after I joined President Nixon's White House staff, my secretary informed me that Abe Fortas was on the line. He asked to see me that day, explaining that his visit related to the arts, for which I had White House staff responsibility. (As a onetime jazz saxophone and clarinet player, I had a historical sympathy for performing artists, and this weakness had prompted me to volunteer for this White House assignment.) He said that it had nothing to do with law or politics.

Fortas had by then resigned from the Court, and the currents of controversy which surrounded that judicial brou-haha had subsided. In 1968, after Pres-ident Johnson had announced his in-tention not to run for reëlection and thus made himself a lame duck, he tried to appoint Justice Fortas to the post of Chief Justice. The nomination was blocked, shortly before the 1968 Presi-dential election, by revelations that while Fortas was on the Court he had received a private honorarium and had given Johnson much political advice. Then, in May, 1969, a *Life* article revealed that Fortas had accepted a substantial fee from financier Louis Wolfson, who was then being investi-gated by the S.E.C. This article started the chain of events that forced Fortas off the Court altogether. To the end of his days—he died in April, 1982—Fortas maintained to friends and col-leagues that the *Life* article had been Time, Inc.,'s punishment of him for his role in the Hill case.

At the time Fortas came to see me, I

had never met him and didn't know about this feeling of his, but I did feel a strong personal tie to him because of his powerful support in the Hill matter. His mission, he explained humorously and deftly, was to see if some way could be found to permit musicians to dead-head cellos and other large musical instruments on airplanes that had ex-cess space. (He had remained an ac-complished violinist, and he made the point that he could hold his fiddle on his lap and was therefore not self-interested.) Would I help out? "Sure," I said, "but don't hold your breath while the Civil Aeronautics Board decides whether to waive its rules." As we chatted, I mentioned the Hill case. This produced a surprising outburst from Fortas. In all his time on the Court, he told me, no case had affected him so much, or so deeply offended his sense of fairness and equity. "It was a bad result, and terribly unfair to the Hill family," he said. "I offer you my apologies for not being more effective."

In my remaining years in Washing-ton, Fortas and I became something between acquaintances and friends. He could be a shrewd and merry adviser (or a cold and difficult man, if he chose), and from time to time I called upon him for private advice. I could see why President Johnson couldn't break his habit of turning to Fortas as his counsellor of first or last resort, even when Fortas ascended to the suppos-edly cloistered life of a Supreme Court Justice.

His last piece of substantive advice to me was pure Fortas. The day before President Ford's first press confer-ence, on August 28, 1974, I lunched with John Osborne, the *New Repub-lic's* wise old White House watcher, and called the CBS News stalwart Eric Sevareid, another Washington friend. I was then assistant to President Ford, one of the handful of Nixon staffers who were allowed to remain in the Ford White House and thus escape much of the Watergate taint, and I asked both Osborne and Sevareid whether Ford should pardon Richard Nixon. Both felt that a pardon should be granted. In the late afternoon, I called on Abe Fortas at his George-town home and put the question to him. Was it the right thing to do? Was it feasible? Should I weigh in person-ally and try to make the case to Presi-dent Ford?

By all means, he said. This was the

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time for President Ford to act, quickly and decisively. The convulsion of a trial of Richard Nixon was the last thing that the country—shaken deeply, as it was, by Watergate and a Presidential resignation—needed at this time. This is "Ecclesiastes time," he said—a time for repair and reconciliation, and not "the horror" of a long state trial of the former President.

Fortas's judgment made up my mind. At the suggestion of General Alexander Haig, the White House Chief of Staff, I wrote a memorandum that night to Haig and to Philip Buchen, the President's counsel, and handed a copy to each of them in the White House at eight the next morning. At ten-thirty, after meeting with President Ford and taking counsel from others—their identities are still unknown to me—Haig called, and said, "It's all set." The announcement of the pardon came on September 8th.

In later months, when I read Fortas's various public condemnations of Richard Nixon, I had occasion to reflect on the uses of Fortas's complex political style, which even then was becoming an anachronism. In that respect, Fortas and Nixon were very much alike. Both were public men with extraordinary gifts, and both were bundles of contradictions. Both would praise each other in private while attacking each other in public—or vice versa. During the 1968 fight over Fortas's nomination for Chief Justice, Nixon, as Murphy tells it, encouraged other Republicans to attack, but would not attack Fortas himself or make Fortas an explicit issue in the 1968 Presidential campaign. Fortas, meanwhile, was free with his praise of Nixon's skills as an advocate when speaking to lawyers, who viewed such talk as a mark of professionalism and sophistication. Not so in public, where Fortas would follow convention and bury Nixon rather than praise him. For both, it was a matter of audience. And this method of conducting political business contributed to each man's undoing.

In December of 1974, when I was leaving the Ford Administration to return to New York and practice law, Fortas took me to lunch. He was at his charming best. As we finished up, he said, "You know, I have a tiny law firm but an interesting practice over in Georgetown, lots of freedom to do as

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THE NEW YORKER

much or as little as I want. Would you
like to become my partner?" I told him
I was honored, pleased, and tempted,
but I had had enough of Washington
and was determined to go back home.
"You will return," he said, grinning
elfishly. "Washington is just too much
fun." (I did return, in 1980.)

THE Hill case left me with a per-
manent collection of what-ifs.

Would the great expansion of press
protection in the Sullivan case have
occurred if it hadn't been for the chill-
ing nature of the restraint imposed by
the Southern court and jury that de-
cided the case against that symbol of
northern liberalism, the *Times*, as the
civil-rights revolution moved thou-
sands of blacks and their supporters
into the streets and the courts?

Might the Hill decision have been
affirmed if *Time's* appeal to the Su-
preme Court had not followed so
quickly on the heels of Sullivan and the
surrounding pro-press enthusiasm of
the public and the courts?

Would the Hill case have engen-
dered an earlier and more constructive
exploration of appropriate distinctions
between the protection of private and
public figures from press comment, as
Justice Harlan suggested, if the case
had not been distorted by a bitter per-
sonal vendetta by one Justice toward
another?

What might have happened if
Watergate had not apotheosized the
investigative journalist and made the
idea of restraint, self-imposed or court-
imposed, anathema to dominant jour-
nalistic opinion?

By now, there is no denying that the
relationship between the press and
other American institutions is seriously
awry, with far too much contempt and
self-justification emanating from all
sides. Post-Watergate norms of jour-
nalistic behavior have generated wide-
spread popular resentment, and court
decisions and jury verdicts have been
reflecting that new sentiment.

Richard M. Clurman, a former edi-
torial executive for Time, Inc., and
one of the nation's most balanced ob-
servers of press and privacy issues,
comments on this issue in his important
new book "Beyond Malice: The Me-
dia's Years of Reckoning":

Public support can be counted on only if
journalists themselves and their bosses rec-
ognize that as much as their role has
changed, so must many of their practices.

They cannot proclaim policies and values
in the public interest that are at odds with
their own behavior and performance.
They need to understand that beyond mal-
ice in its constitutional meaning are pat-
terns of media behavior that are unaccept-
able. They cannot produce an information
product as if it were any other profit-
oriented commodity. If others are to be
prevented from restraining them, they
must temper their new and growing mod-
ern power with more awareness, self-re-
straint and initiative in the interests of the
public.

Chief Justice Warren, Justice For-
tas, and Justice Harlan, in their re-
sponse to the Hill facts, intuitively an-
ticipated just such developments as
have occurred. They saw the case as
one of nontechnical justice—two ordi-
nary American parents touched by
near-tragedy and trying to shield
themselves and their five young chil-
dren from the cheapening effects of
unwanted and distorted publicity.
These Justices did not think that pro-
tecting the Hills entailed any new cate-
gorical press restraint or that it re-
quired any great jurisdictional analysis.
Justice Harlan, in particular, empha-
sized not only the constitutional dif-
ference between public and private
persons but the "severe risk of irreme-
diable harm" that such publicity could
bring upon "individuals involuntarily
exposed to it and powerless to protect
themselves against it." And, indeed, at
the trial there had been testimony that
the *Life* article had caused Mrs. Hill
lasting emotional injury. Two eminent
psychiatrists had explained the causal
dynamics of the trauma inflicted on
her. Both said she had come through
the original hostage incident well but
had fallen apart when the *Life* article
brought back her memories trans-
formed into her worst nightmares and
presented them to the world as reality.
Both said she was and would for an
indefinite time remain a psychological
tinderbox. In August, 1971, Mrs. Hill
took her life.

James Hill has given me permission
to discuss these matters in this article. I
am not asserting that the false and
unwanted publicity of the *Life* article
caused this tragedy. Suicide is among
the darkest of human acts, the result of
multiple influences. It is not unfair,
however, to say that troubled persons,
clinging to their psychological integ-
rity in an invasive world, suffer with
special acuteness when they are forced
into the spotlight of negative commu-
nity attention. In many cases, their

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ordeal brings more than just transitory
embarrassment or a general sense of
resentment at a trespass. This sort of
reasoning rubbed a fundamentalist in-
terpreter of the Constitution like Hugo
Black the wrong way—just as Abe
Fortas, the much-admired and com-
plex hybrid of lawyer and political
adviser, provoked in Justice Black an
unending resentment.

The combination of Sullivan and
Hill with the superheated environment
of the late nineteen-sixties and early
seventies had large political conse-
quences. There were journalists who
came to believe that the First Amend-
ment's writ ran without limit; many
citizens thought otherwise. The re-
sentment engendered by what was
viewed as the arrogance of the press
may have played a role in forming,
through these years, the country's in-
creasingly conservative disposition. It
may be that, just as Hill had the ironic
effect of bringing about more attention
to private persons' rights against the
press, the generation of journalists
formed by the events of the late nine-
teen-sixties and early seventies had a
part, albeit unwittingly, in the election
of Richard Nixon, Ronald Reagan,
and George Bush. And, partisan con-
siderations aside, the press now finds
itself in a hostile environment that
threatens the liberty Hugo Black
thought he was securing. It is time to
start finding our way back.

—LEONARD GARMENT

Seventy-eight percent of those surveyed
said they believe people should be required
to provide more information to police
before they are allowed to buy any kind of
firearm, while 15 percent said they believe
current laws are adequate.

The telephone pole has a margin of er-
ror of plus or minus 4 percent.—Eugene
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More during thunderstorms.

Life fruit exchange sought by simpatico,
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