50 Wash. L. Rev. 57 (1974-1975)
Privacy and the Press Since Time, Inc. v. Hill

handle is hein.journals/washlr50 and id is 71 raw text is: PRIVACY AND THE PRESS SINCE
TIME, INC. V. HILL
Don R. Pember* and Dwight L. Teeter, Jr.**
To say that the law of privacy is not a great hallmark of logic and
clarity in American law is to indulge in egregious understatement.
This area of law continues, to borrow James Thurber's phrase, to be
as disorderly as a whore's top drawer.' Fascination with the spas-
modic growth of the invasion of privacy tort is evidenced by scores of
books.2 Part of this abundant interest is perhaps due to privacy law's
relative youth; it is less than 100 years old. Also, scholars may have
had their interest piqued because it is one of the few areas of law
whose striking growth in this century has stemmed largely from
common law creation rather than from legislation or statutory inter-
pretation.
At this writing, a right of privacy is recognized in 39 states,
as well as in the District of Columbia.3 Most of this recognition is
* Associate Professor, School of Communications, University of Washington; B.A.,
1964, M.A., 1966, Michigan State University; Ph.D., University of Wisconsin, 1969.
** Professor, Department of Journalism, and Director of Graduate Studies, School
of Communications, University of Kentucky; A.B., 1956, MJ., 1959, University of
California (Berkeley); Ph.D., University of Wisconsin, 1966.
1. WRITERS AT WORK: THE PARIS REVIEW INTERVIEWS 86 (M. Cowley ed. 1959).
2. See, e.g., M. BRENTON, THE PRIVACY INVADERS (1964); S. HOFSTADTER &
G. HOROWITZ, THE RIGHT OF PRIVACY (1964); A. MILLER, THE ASSAULT ON
PRIVACY (1971); V. PACKARD, THE NAKED SOCIETY (1964); D. PEMBER, PRIVACY
AND THE PRESS (1972); A. WESTIN, PRIVACY AND FREEDOM (1967).
3. As of 1960, a common law right of privacy was recognized in the District of
Columbia and 26 states: Alabama, Alaska, Arizona, California, Connecticut, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi,
Missouri, Montana, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania,
South Carolina, Tennessee, West Virginia. Prosser, Privacy, 48 CALIF. L. REV. 383,
386-87 (1960) [hereinafter cited as Prosser]. (Readers unfamiliar with the law of
privacy are advised to read Prosser's article in full for an excellent overview.) Since
Prosser's survey, the courts of nine more states have adopted the majority view: Olan
Mills, Inc. v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962); Rugg v. McCarty, 476 P.2d
753, 755 (Colo. 1970); Barbieri v. News-Journal Publishing Co., 189 A.2d 773 (Del.
1963); Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374,441 P.2d 141 (1968);
Carr v. Watkins, 227 Md. 578, 177 A.2d 841(1962); Hambergerv. Eastman, 206 A.2d 239
(N.H.1964); Apodaca v. Miller, 441 P.2d 200, 204 (N.M. 1968); Truxes v. Kenco Enter-
prises, Inc., 80 S.D. 104, 119 N.W.2d 914 (1963); Billings v. Atkinson, 489 S.W.2d
858, 860 (Tex. 1973).
The courts of three states have specifically refused to recognize a right of privacy:
Brunson v. Ranks Army Stores, 161 Neb. 519, 73 N.W.2d 803 (1955); Henry v.

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