Privacy and the First Amendment

IN New York Times Co. v. Sullivan,' the United States Supreme Court held that state tort law and its judicial enforcement is "state action" within the fourteenth amendment.Thus, where such law unduly interferes with freedom of speech or press under the first amendment, it cannot be enforced.Although the Times case arose out of a libel suit, there can be no doubt that any tort or other action cognizable in state courts will be subject to future constitutional test.The next tort action to undergo constitutional scrutiny will undoubtedly be that of invasion of privacy.Indeed, the Supreme Court has recently accepted a privacy case arising out of a judgment awarded to an individual publicized in Life magazine.2 As the Court stands poised at the brink of entry into yet another state domain, it would be propitious to clearly understand the problems posed by the present law of privacy and the possible resolutions to these problems.Since libel is an ancient, well-developed area of law, which the Supreme Court's decision recognized, 3 we need not unduly tarry at Times.'While libel "interests" are known, privacy is a bit more mysterious.Invasion of privacy, at least by communications media, is a relatively new area of law, with its own amorphous principles, and some clearing of the mystery concerning the interest it is designed to protect is necessary.It is only then that constitutional problems can be fruitfully analyzed.Most states recognize invasion of privacy as a common-law tort.4 Several states have adopted statutes designed to deal with the subject (or at least certain aspects of it) .Despite literally hundreds of cases in-* Member of the New York and Federal Bars.1. 376 U.S. 254 (1964).2. Hill v. Hayes, IS App.Div.2d 4S5, 240 N.Y.S.2d 2S6 (1st Dep't 1963), aff'd mem., 15 N.Y.2d 9S6, 207 N.E.2d 604, 260 N.Y.S.2d 7, prob.juris.noted, S6 Sup.Ct. 392 (1965).3. The Supreme Court has often refused to permit state common-law principles of tort or property to override constitutional claims.See Shelley v. Kaemer, 334 U.S. 1 (1943); cf.Marsh v. Alabama, 326 U.S. 501 (1946).4. At least thirty states and the District of Columbia have so recognized it.Prozer, Torts § 112, at 831-32 (3d ed.1964).S. Four states have adopted statutes applying criminal sanctions in case of invasion of privacy.N.Y.Cii.Rights Law § 50; Okia.Stat fit.21, § 339.1 (Supp.1965) ; Utah Code bmn.§ § 76-4-7 to -S (193); Va.Code Ann.§ S-650 (1950).'These jurisdictions also statutorily provide for civil liability.N.Y.Civ.Rights Law § 51; Okla.Stat.tit.21, § S392 (Supp.1965); Utah Code Ann.§ 76-4-9 (Supp.1965); Va.Code Ann.§ 8-630 (1950).For a review of some of the profuse literature on privacy, sea Bloustein, Privacy a-an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L. Rev. 952 (1954).