Outrageous Invasions
California Lawyer

Outrageous Invasions

Celebrities’ Private Lives, Media, and the Law

May 2011

Oxford University Press, 324 pages, $55, hardcover

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In this provocative book, Robin D. Barnes lauds the way European law protects the rich and famous, and she chastises the American system for giving too much deference to freedom of the press. Barnes, a professor at the University of Connecticut School of Law, is forceful in her advocacy, and empathetic--bordering on sycophantic and idolatrous--in her treatment of celebrities.

The thesis of Outrageous Invasions is: "Celebrities are routinely subjected to stalking, harassment, invasion of privacy, and defamation, in clear violation of their constitutional rights as citizens of this nation." Barnes goes on to explain her theory that, under the Equal Protection Clause, celebrities should "simply be left alone" to the same degree as all other "average, unknown" people who are not governmental officials acting in an official capacity. She cites "an urgency surrounding the need to address the harmful and mercenary exploitation of today's so-called public figures."

According to Barnes, the European Union is "far more respectful of the egalitarian nature of the democratic process," more "effectively" gives all individuals the "personal power" to shape their "public images," and does better in guarding "familial dignity" and "personal and political consciousness" than the United States. Barnes posits that the "most striking difference" between American and European courts in the field is "the European Union's concerted efforts to 'get it right.' "

Barnes explains that she was prompted to write the book because of her "growing concerns about widespread immunity from liability enjoyed by tabloid publishers in the United States ..." She asserts, without citing any authority, that "trial verdicts favoring celebrities for many violations often cost the publisher a fraction of the profit gleaned from its sales figures." But struggling publishers of all stripes, and particularly those who must persistently and at great expense defend against threatened and actual litigation by well-heeled celebrities, would likely dispute that they enjoy either across-the-board immunity from liability or sky-high profits.

In her argument, Barnes takes on well-rooted First Amendment doctrines such as reporting on matters of public concern, the public's right to know, the jurisprudential progeny of New York Times Co. v. Sullivan, and the anathema of prior restraints. She reserves especially harsh criticism for what she calls the "irrationality" of labeling celebrities "public figures" who purportedly "retain no rights of privacy" under our current system. She claims that the supposedly "unyielding constitutional support for the role of editorial opinion, invasive speculation, parody, hyperbole, and satire has escaped rigorous legal examination." Some opinions of Barnes--such as "virtually everyone is now required to prove malice before recovering for either defamation or public disclosure of private facts"--simply are not supported by legal decisions.

The book is full of anecdotes favorable to Barnes's position. From Britney Spears to Angelina Jolie, Barnes laments America's fascination with celebrity, citing psychological analyses of the American public and the "psychology of media control." Barnes notes that "[m]any well-intentioned people struggle with issues of fairness on the celebrity privacy question." The book pays some, but comparatively little, attention to the special privileges afforded celebrities by virtue of their stature in society, such as their wealth and their (frequently exercised) ability to summon media attention for their spectacular advantage.

Roughly half of the book is interspersed with a general survey of defamation and privacy law in the United States and Europe that may be interesting to both lay people and lawyers unfamiliar with the field. The chapters are broken into subchapters that usually flow well, but sometimes there are choppy non sequiturs--jumping, for example, from "infotainment" to a critique of the media coverage of the Mohammed cartoon controversy of 2005. Similarly, latter portions of the book seem to fall a bit off topic: discussing allegedly "undue burdens on celebrity speech"; instances in which John Lennon and Michael Jackson were supposedly treated too harshly by the government and the media; and even hinting that charges against Jackson for child molestation may have been part of a conspiracy to divert attention from the Catholic Church's troubles on the same issue.

Last year, Congress passed by unanimous consent voice vote, and President Obama signed, a new law banning "libel tourism," such as the domestic enforcement of foreign libel judgments that are antithetical to our First Amendment values and jurisprudence. In light of this, Barnes's aggressive and in some ways novel views endorsing European law are not likely to take root in America anytime soon.

Jean-Paul Jassy is a partner at Bostwick & Jassy in Los Angeles, where he practices primarily in First Amendment and media defense law. The views expressed here are his own, and not necessarily those of his law firm or its clients.

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