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Richard Nixon at the Supreme Court

Fifty years ago, in January 1967, the Supreme Court decided Time, Inc. v. Hill, the first case in which it weighed the right to privacy against freedom of the press. In Hill, the Court declared that the First Amendment right of the press to publish newsworthy material outweighed a family’s right to privacy—their right to not have a personal tragedy falsely publicized in the media. The important decision diminished the right to privacy, expanded freedom of the press, and lay the groundwork for a broad newsworthiness privilege in privacy law—a privilege that was recently questioned in the high-profile Hulk Hogan v. Gawker case of 2016.

Time, Inc. v. Hill was a landmark in constitutional law. It was also a significant and largely unknown turning point in the life and career of Richard Nixon. Hill was the first and only case Nixon argued before the Supreme Court. Nixon, who left politics following his 1962 defeat in the California gubernatorial election, was practicing law at a New York firm at the time and plotting his return to the political arena. According to his colleagues and biographers, Nixon’s highly-praised argument before the Court, which gave the future president an opportunity to wage his longstanding war on the press, emboldened him to move forward with his 1968 presidential bid.

Hill was an unusual case. It began in 1952 when James and Elizabeth Hill and their five children were held hostage by escaped convicts in their home in suburban Philadelphia. The family was trapped for nineteen hours by three fugitives who treated them politely, befriended the children, took their clothes and car, and left them unharmed. For a few weeks, the Hills were the subjects of media coverage. Public interest died out, and they went back to their ordinary, obscure lives.

In 1954, an author named Joseph Hayes published The Desperate Hours, a true crime thriller about a family held hostage in their home by three escaped convicts. The Desperate Hours was based loosely on the Hills’ story but highly fictionalized. In the story, the father was beaten, the daughter sexually threatened, and the family attempted a daring escape. The book became a bestseller and was made into a Broadway play, and later a film starring Humphrey Bogart.

Life magazine ran a story on the opening of the play. The article described the play as a “reenactment” of the Hills’ experience, implying that the family had been abused and the daughters raped. The family was devastated by the embarrassing and false publicity, and they contacted a friend at the law firm Mudge, Stern, Baldwin, and Todd. The case was assigned to a young associate named Leonard Garment, who would years later become White House counsel under Richard Nixon.

The Hills sued Time, Inc., Life’s publisher, under a New York invasion of privacy law. In 1962 a jury awarded $175,000, the biggest invasion of privacy verdict to that time. Not long after, the Supreme Court issued its decision in New York Times v. Sullivan (1964), declaring that the press had a broad First Amendment right to report on public officials, including a right to publish libelous falsehoods about them, unless the statements were made with “actual malice,” or reckless disregard of the truth.

Emboldened by Sullivan, Time, Inc. appealed to the Supreme Court, arguing that the judgment for the Hills violated freedom of the press. The Court hadn’t yet considered the First Amendment implications of privacy law, and in December, 1965, it announced it would take the case to consider the “important constitutional questions” involved. It was then that Nixon got involved in the case.

By that time, Nixon had been in Congress, served as Vice-President for two terms, unsuccessfully ran for president against Kennedy in 1960, and failed in his attempt to become California’s governor. After losing the governor’s race he gave his infamous “last press conference,” in which he blasted the press, his longtime nemesis, accusing them of covering only their favored candidates:

You won’t have Nixon to kick around any more, because, gentlemen, this is my last press conference and it will be one in which I have welcomed the opportunity to test wits with you. I have always respected you. I have sometimes disagreed with you. But, unlike some people, I’ve never canceled a subscription to a paper and also I never will.

The spiteful attack was a public relations disaster; barring a miracle, pundits said, Nixon’s career was over.

Nixon moved to New York in the hopes of making a fresh political start. His friend Elmer Bobst, retired chairman of the Warner Lambert Pharmaceutical Company, known as the “Vitamin King,” told him that corporate law might serve as a launching pad for a potential return to politics. Bobst introduced Nixon to the head of the Mudge firm. In 1963 the firm offered Nixon a position as one of its leading partners. Nixon was asked if he’d given up politics. “Yes,” he lied.

Nixon went at his law job doggedly and aggressively, the way he went after political office. He gave the firm a higher profile; new accounts came to Mudge for the prestige of working with Nixon. “I never realized how easy it is to make money,” Nixon remarked. “I just got twenty five thousand dollars for telling a bunch of stupid jerks something they could have learned from the newspapers.” At the same time, Nixon traveled the country giving lectures and campaigning for Republican candidates in the 1966 congressional elections. The period, which he referred to as his “wilderness years,” was one of the most remarkable of his life, when he “fought for his reincarnation,” in the words of his biographer.

Believing Nixon had a shot at the Presidency, Garment started an impromptu “campaign team” at the firm. Garment hit on the Hill case as a possible element in Nixon’s political reemergence. “Nixon listened carefully to my description of the case,” Garment recalled. “The magazine wasn’t out to injure the Hills, he remarked; it just didn’t give a good goddamn about them. It was only interested in selling its goddamn magazine. That’s what makes it so infuriating. All that fancy First Amendment talk—just a lot of pious bullshit while they exploit the hell out of you.” Garment was slated to argue the case before the Court but suggested Nixon take his place. Wrote Garment, it “summoned up for me what seemed to me an attractive picture… of Nixon, who had apparently passed from the political scene, defending the right of privacy against one of the nation’s largest publishers.”

Nixon had doubts about getting involved in the case. He thought he ran a risk, as some of his oldest political enemies sat on the Court; most notably, Earl Warren. Garment convinced him that his appearance before the Court could become part of the public’s perception of him as a “New Nixon.” It was also a golden opportunity for Nixon to wage his war on the press.

In the weeks leading up to the oral argument, the Mudge lawyers worked hard to dismantle Time Inc.’s claims: that the Life story was “news” and immune from liability for invasion of privacy, and that the error in the Life article was innocent and therefore negated by the Sullivan rule. Nixon memorized the trial record, court precedents, and dozens of law review articles. As the argument neared, he set up “skull sessions,” question and answer sessions with colleagues simulating court argument. Nixon recalled, “I locked myself up in my office for two weeks. No phone calls. No interruptions. It [took] a tremendous amount of concentration.”

Nixon plotted a series of attacks on Life that he planned to deliver at the oral argument. He wrote them out on long, lined yellow legal notepads in his scrawling, cramped hand. “I like my magazine newsy, exciting, and stimulating, but not at the cost of invading privacy of a just ordinary middle class family by using their name in a fictional setting for commercial gain,” he wrote. “Shall we allow the use of persons as commercial props by the mass media?” Without a strong right to privacy, “how can an individual remain an individual in a mass communication society?”

Dressed somberly in a black suit and starched collar, Nixon by all accounts delivered a polished performance. “Let me emphasize… that the reason that Life magazine did this is [that] it was a good gimmick,” he told the justices. “They were using these people as props. They were using them as props for the purpose of making the article more readable and for selling more magazines.” “Life magazine lied… and Life magazine knew it lied,” he insisted. The Washington Post described it as “one of the better oral arguments of the year.” The Los Angeles Times called him “smooth and deferential.” At a Court luncheon, several of the justices expressed surprise that Nixon had done so well. Abe Fortas believed that Nixon could develop into one of the “great advocates of our times.”

Two days later, the justices met to vote on the case. The vote was 6-3 for the Hills. Nixon had convinced even Earl Warren to take his position. Fortas wrote the majority opinion, a scathing attack on Time, Inc. that was clearly inspired by Nixon’s argument. A draft of the opinion was circulated among the justices.

Hugo Black—irascible, 80 years old, and a staunch defender of the First Amendment—was outraged by Fortas’ opinion. Claiming that there were errors in it, he convinced Fortas to have the case held over to the next term and reargued. Nixon and Time, Inc.’s lawyer were summoned back to court. The day before the reargument, Black circulated a strongly-worded memo that swayed a majority to his side. After the reargument, the votes switched. The behind the scenes back-and-forth among the justices, documented in memoranda and correspondence contained in Supreme Court archives, were never publicized until the 1980s.

The 6-3 decision against the Hills was issued on January 9, 1967. Time, Inc’s First Amendment right to publish newsworthy material outweighed the Hills’ right to privacy, Justice William Brennan wrote in the majority opinion. The opinion defined newsworthiness broadly, in a manner that was highly deferential to the press— what was newsworthy was essentially what the media said was “news.” This expansive definition of newsworthy material practically negated the possibility of winning a privacy case against the media. Many heralded the decision as important victory for freedom of the press, but others wondered whether the Court had overlooked the importance of privacy, especially for ordinary citizens like the Hills.

The outcome notwithstanding, Time, Inc. v. Hill encouraged Nixon. The praise he received for his oral argument was empowering to him. According to biographer Jonathan Aitken, Nixon’s appearance before the Court marked the “zenith of his legal career. In his own mind he had now proved himself on the fast track of the New York bar. This made him feel ready to return to the even faster track of national politics.” Although Nixon and his “campaign team” at the law firm had been laying the foundations for a presidential run since 1965, Nixon, chronically insecure, remained doubtful about his prospects. Time, Inc. v. Hill helped Nixon find the confidence he needed to announce his 1968 presidential bid.

For the rest of his life, Nixon remained bitter that he lost his Supreme Court “war” on the press. He said to Garment, “I always knew I wouldn’t be permitted to win … against the press.” Nixon told Garment that he “never want[ed] to hear about the Hill case again,” and continued to believe that “Life was as guilty as hell.” Nixon didn’t know that he almost won the case.

Samantha Barbas is Professor of Law at the University at Buffalo School of Law, where she teaches legal history and mass media law. This piece is based on her recent book Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford University Press, 2017).