Lewis speculates about the factors that went into Holmes’s change of course and suggests that a powerful influence was an article by Professor Zechariah Chafee Jr. of Harvard Law School, titled “Freedom of Speech in War Time,” which appeared in the Harvard Law Review in June 1919. Lewis reports that Holmes read it that summer. As this was just about the time the shift took place, and as Holmes subsequently wrote to Chafee saying he had been “taught” by the article, it seems likely that the piece played an important role. Yet one wonders how much Holmes was also influenced by what was going on in the country. It was a period of great agitation about aliens and radicals—comparable in many ways to the concern about terrorists in our time—leading up to the Palmer raids of November 1919 and January 1920 that involved dragnet arrests of thousands and the summary deportation of hundreds. In addition, the federal and state courts were crowded that year with prosecutions of anarchists, communists, pacifists, labor organizers, and assorted others who had spoken their minds. In changing course, Holmes was declining to join the hysteria sweeping the country. By speaking out eloquently in his dissents, he may have helped the nation regain its balance a few years later, as in 1924 when Calvin Coolidge’s attorney general, Harlan Fiske Stone, terminated the FBI’s antiradical division.
Though Lewis is a strong advocate of First Amendment rights, and writes about the crucial court cases that protect those rights from the standpoint of a believer, he is no indiscriminate partisan of the industry known as “the press.” Lewis believes in the right of all to express their views, but does not hold that journalists have special privileges. Nor does he necessarily come down on the side of the news media when their manner of expression comes into conflict with other rights.
An example of his willingness to give precedence to other rights is provided by his discussion of a famous Supreme Court case of the 1960s, Time, Inc. v. Hill. The Hill family had a frightening experience in 1952, when three escaped convicts seized their home outside Philadelphia, held them hostage for nineteen hours, but treated them courteously and released them unharmed. To escape the extensive publicity that followed this incident, the family moved to another state and did its best to stay out of the limelight. Two years later, a play based on the incident, but which did not use the Hill family name, opened on Broadway. Though The Desperate Hours portrayed the incident as involving sexual threats and considerable violence, it did not defame the Hills, as the family depicted in the play was shown behaving courageously.
But on the opening day of the play, Life magazine published an article that connected the fictionalized account that appeared on stage to the actual experience of the Hill family. The article not only named the Hills and included photographs of the actors in what had been the Hill home near Philadelphia, but it reported on the brutality portrayed in the play as if that were what actually happened.
The Hills sued and got a $30,000 judgment under New York State’s right-to-privacy law, which, among other things, prohibits “false light” portrayals. In the U.S. Supreme Court, however, that judgment was reversed in a five-to-four decision, in which Justice William Brennan wrote that the lower-court decision violated the First Amendment. According to Brennan, “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and press.” Commenting on this, Lewis writes, “I am a great admirer of Justice Brennan, but I disagree with his conception of a civilized community.” The personal tragedy of the Hill family apparently weighs heavily on Lewis’s thinking about the case. After Life published its story, Mrs. Hill suffered a breakdown that psychiatrists attributed to trauma resulting from memories of the hostage episode, which acquired a more sinister cast through Life’s portrayal of it. Four years after the Supreme Court decision, she committed suicide.