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The Missouri Supreme Court decision Barber v. Time, 159 S.W.2d 291 (Mo. 1942), was one of the first to establish that the balance between an individual’s right to privacy and freedom of the press does not depend solely on the truth of or the absence of malice in what is published, but on the judicial determination of “proper public interest.”


Barber sued for invasion of privacy

In early March 1939, Dorothy Barber, a nonpublic figure and private citizen, checked herself into a public hospital in Kansas City for treatment of an eating disorder that caused her to eat enormous amounts of food without gaining weight.


A week later, Time magazine published a humorous story about her under the headline “Starving Glutton.” It was accompanied by a photo of Barber in her hospital bed. Barber, who did not give her consent to either the article or the photo, successfully sued Time for invasion of her privacy. Time appealed the decision to the Missouri Supreme Court.


Missouri Supreme Court said Time had violated Barber’s privacy

Justice Laurance Hyde wrote the opinion in Barber that affirmed the lower-court opinion that Time had violated Barber’s right to privacy. Although Hyde agreed with “the classic article” written in 1890 by Samuel D. Warren and Louis D. Brandeis (later appointed to the U.S. Supreme Court) that privacy is the right to be left alone, Hyde noted that no individual “is entitled to or can have complete isolation.”


An individual is a member of society, and thus his or her rights must be placed within this social context: “Individual rights must be construed in the light of duties incumbent upon individuals as citizens of a free country.” In effect, Hyde continued, as long as an individual “behaves properly,” his or her right to privacy cannot be restricted.


Court said press freedom and a right to privacy must be balanced

Hyde also pointed out that freedom of the press is not by itself an absolute; it “was not created merely for the benefit of the press.” Rather, the guarantee of a free press is instrumental to ensuring “the preservation of free government and progress of civilization.”


Because neither an individual’s right to privacy nor the right of a free press to inform is absolute, the proper balancing of the two “is a matter of harmonizing individual rights with community and social interests.” Neither should be allowed to abuse its “constitutional rights or overlook its obligations to others.”


Courts must determine “proper public interest” and “private affairs”

To achieve this balance, the courts must first determine whether the press is reporting on a matter of “proper public interest” and weigh that against the individual’s “private affairs.” If press coverage either does not address proper public interest, or does so in a way that is “serious, unreasonable, unwarranted and offensive interference with another’s private affairs,” the press has violated the individual’s right to privacy.


Applied to the Barber case, Hyde concluded that although media coverage of health care and medicine falls under the category of a proper public interest, this interest can be satisfied without reporting names and publishing pictures of individual health care patients without their consent.


Alex Aichinger is a former professor at Northwestern State University in Louisiana. He has also contributed to American Constitutional Law Volumes I and II. This article originally published in 2009.


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