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Friday, Aug. 03, 2001

In a recent interview on CNN, First Lady Laura Bush accused the news media of overzealously reporting on her daughters, Barbara and Jenna, saying the twins should be "totally left alone." Mrs. Bush added, "If we never saw their pictures in the paper again, we'd be a lot happier."

This raises a fundamental question. Do these young women have any legal remedies? Before addressing the question, let us first look at the facts — and at the media attention that obviously troubles Mrs. Bush.

Life and Times Of The First Twins

Barbara and Jenna Bush grew up in relative obscurity as daughters of the Texas governor. But when their father became president, that all changed.

By the time the Supreme Court declared George W. Bush the president-elect, the tabloids had discovered his girls. For example, on December 21 of last year, the National Enquirer’s headline screamed: "Get Ready, America! Here Comes George W's Wild Daughter." The story was about Jenna's purported "reputation at the University of Texas at Austin as a wild party girl who flirts openly with fraternity hunks."

Similar stories followed in the Enquirer: On March 9 of this year, it reported that Jenna barely escaped arrest when the police raided a party in Fort Worth. On April 19, it found Barbara on spring break at a Mexican resort: "Beer. Hunky guys. The hot Mexican sun. Tequila shots — lots of them. It was a recipe for disaster for the 19-year-old Yale University freshman." Then, on April 30, it reported Jenna's citation by an Austin, Texas policeman for underage drinking.

Initially, the mainstream media ignored the rumors, as well as the tabloid and Internet stories, about the twins. The White House press corps honored the President and First Lady's request that their college-bound daughters be granted a "zone of privacy." This had been a long tradition where teenage and younger children of presidents were concerned; it had protected Julie and Tricia Nixon, Susan Ford, Amy Carter, and Chelsea Clinton.

But when both Jenna and sister Barbara got busted for underage drinking on May 29 in a Texas bar, with their Secret Service agents protecting them from arrest, it became a story none of the media could ignore. All news media have followed the story ever since — from network and cable television, to magazines and newspapers that run headlines like: "Double Trouble," "Jenna and Tonic," "All the President's Daughters," and "Bush Kids Had A Beer, Bomb Iraq."

Underage Drinking A Legitimate Story

While the Bushes may be unhappy with this problem of living in a fish bowl, when White House family members break the law it is news. President Bush campaigned on family values. How he deals with the real world problem of rambunctious teenage daughters is part of his presidency. It is because he signed a zero tolerance underage drinking law in Texas when he was governor that his daughters could face jail time.

Reporting facts concerning high profile people is the very essence of the freedom of our press under the First Amendment. Obviously Mrs. Bush cannot ask the media not to cover legitimate news about a serious problem — underage drinking.

Rather, it is those in the media who are pushing the envelope — such as Talk magazine with its forthcoming fashion spread — that are raising real issues, both of journalistic ethics (the spread appears to be a clear commercial exploitation of these young women) and law.

Media Exploitation of the Bush Twins

The Talk spread reportedly depicts Barbara and Jenna Bush, portrayed by look-alike models, as well clad jailbirds; a George W. Bush look-alike bails them out of jail. It is only the latest in a growing trend in which the media — from the Internet to the mainstream — have exploited these young women. And Talk's exploitation is certainly not the worst.

The indomitable Larry Flynt has already gone to the extreme with Jenna Bush, which should make anything Ms. Brown does appear restrained. As anyone checking the Internet coverage of the First Twins quickly discovers, Mr. Flynt has posted a $10 million offer to Jenna, to match the spread-eagle Hustler-style pose of a nude model draped in an American flag whose head has been replaced with a photograph of Jenna’s.

While one might speculate that President Teddy Roosevelt's daughter Alice — who danced on cars, drove into swimming pools, and smoked on the roof of the White House to defy her father's authority — might have considered Flynt's offer, the prospects of Jenna accepting are nil to none. Yet Flynt, who enjoys testing the limits of the First Amendment, is doing just that, with a fake photo that is acknowledged to be just that.

From what is known about the forthcoming Talk photos — one of which was leaked to Matt Drudge and posted on — they all are in good taste, relatively speaking. Still, to portray Jenna and Barbara as criminals is pushing the First Amendment as well.

Only Jenna is facing jail, and only if she is foolish enough to engage again in underage alcohol use — and get caught. Moreover, even that is unlikely for a teenager with Secret Service protection, which is given for national security reasons.

According to Drudge, who broke the Talk magazine story, the photo layout is to be presented as satire, or parody, a category of speech that traditionally enjoys special First Amendment protection.

Most people in public life — public servants, government officials, politicians, authors, people in the arts and entertainment — learn the hard way that by entering the public square, or engaging in public activity, they lose the ability to protect themselves from false and defamatory attacks. Public people have become sitting ducks for the media.

If the twins are considered public figures, as that status is defined by media law, then there is little they can do to prevent Larry Flynt, Talk magazine, or others from so exploiting them. Both Flynt and Brown are savvy business people; they have measured their risks and rewards. They have calculated that either these young women are public figures, or they are highly unlikely to bring a lawsuit because of the difficulty of doing so.

No legal area is fuzzier than the question of who is a "public figure" under the First Amendment and related law. As someone familiar with this law, I don't believe any appellate court would uphold a ruling that these young women are public figures. But that is not to say that a trial court might not (incorrectly) reach that conclusion.

Public Figure Status Under First Amendment Law

In Gertz v. Robert Welch, Inc., the Supreme Court stated that "those who by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention" are classified as public figures under the First Amendment.

Public figures, the Court observed, generally "have assumed roles of especial prominence in the affairs of society" and have "assumed special prominence in the resolution of public questions." And a public figure "may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." This is known as the "actual malice" standard. (Others, in contrast, may in some cases recover based on a showing of mere negligence by the publisher -- not actual malice).

There are "all purpose" public figures, which include those who "occupy positions of such persuasive power and influence that they are deemed public figures for all purposes." These are people like Ralph Nader, Julia Roberts, Muhammad Ali, Britney Spears, Madonna, and David Letterman.

Then there are "limited purpose" public figures. These are people who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." By voluntarily propelling themselves into such controversies, the limited purpose public figures invite attention and comment.

Finally, the Court indicated that "it may be possible for someone to become a public figure through no purposeful action of his own," but that "the instances of truly involuntary public figures must be exceedingly rare."

Why the Bush Twins Could Be Found To Be Public Figures

Determination of public figure status is a question of law, not fact. Thus, it is the trial judge, in the first instance, who makes that determination. The Supreme Court's broad guidelines as to public figure status have pulled many people who do not really fit the definition into that category. Indeed, one trial judge described his frustration in trying to apply the Supreme Court's definition of a public figure as "like trying to nail a jellyfish to the wall."

Many judges end up applying (without stating they are doing so) a visceral standard similar to Justice Potter Stewart's definition of obscenity: They believe they know a public figure when they see one. This has resulted in people who are famous - but not within the Supreme Court's definition - being ruled public figures by the trial court, only to have that ruling reversed on appeal.

If the Bush twins were to sue, and the trial judge were to rule against them, their appeal might end up in the U.S. Court of Appeals for the District of Columbia. (The D.C. court system is a logical place for the twins to sue.)

Could they be sure of a win on appeal? Not necessarily. The D.C. Circuit, in two instances, has found individuals to be involuntary public figures — even though they never thrust themselves into a public arena. The Circuit has also broadly interpreted the law governing whether persons are deemed to be limited purpose public figures. For example, in the 1990 case of Clyburn vs. New World Communications, the D.C. Circuit held that:

One may hob-nob with high officials without becoming a public figure, but one who does so runs the risk that personal tragedies that for less well-connected people would pass unnoticed may place him at the heart of a public controversy. Clyburn engaged in conduct that he knew markedly raised the chances that he would become embroiled in a public controversy. This conduct, together with his false statements at the controversy's outset, disable him from claiming the protections of a purely "private" person.

Based on this logic, Clyburn, who associated with famous folks, was ruled an involuntary public figure. His false statements seem to have influenced the Court's thinking. For the Bush girls, similarly, their reported use of fake IDs and their reported status as repeat offenders might make the Court less sympathetic to their claims of being private figures.

In Clyburn, the Court relied on several cases that show the broad reach of limited public figure status law. For example, in the Fifth Circuit's 1978 decision in Rosanova v. Playboy Enterprises, Inc., the plaintiff was found to be a limited purpose public figure because he "voluntarily engaged in a course that was bound to invite attention and comment." And in a 1986 District of Connecticut decision, Jensen v. Times Mirror Co., the plaintiff was held to be a limited purpose public figure because she roomed with (and moved in social circles that included) a well-known public figure.

In short, there is law under which a court could find that the Bush twins are public figures.

Two cases suffice to show the type of abuse the public figure can be confronted with and find no remedy at law: the Tenth Circuit's 1982 ruling in Pring v. Penthouse and the Supreme Court's 1988 ruling in Hustler v. Falwell.

The Pring case arose out of a story published by Penthouse magazine about Miss Wyoming, a baton twirler. The story claimed that she had in the past performed fellatio on a high school football player, causing the young man to levitate; it also describes her as performing a similar act on her baton, and on her pageant coach, in the Miss America competition.

The real Miss Wyoming, represented by Gerry Spence, won a $26 million dollar verdict from the jury at trial. But the Tenth Circuit reversed, stating: "The story is a gross, unpleasant, crude, distorted attempt to ridicule the Miss America contest and contestants. It has no redeeming features whatever. … [But] [t]he First Amendment is not limited to ideas, statements, or positions which are accepted; which are not outrageous; which are decent and popular; which are constructive or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing religious or moral standards."

Hustler v. Falwell arose when the Reverend Jerry Falwell sued Larry Flynt and Hustler magazine over Hustler's parody of the Campari Liqueur advertisement series, in which celebrities gave interviews about their "first time." Hustler used Falwell as the featured celebrity; in his alleged "interview," Falwell states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse.

A jury awarded Farwell hefty damages for intentional infliction of emotional distress. The Supreme Court, however, reversed in a 7-2 ruling, finding that the offending parody did not meet the "actual malice" standard. The Court held that outrageous parody alone, without true statements of fact, was protected by the First Amendment.

A Concluding Thought

President Theodore Roosevelt said, "I can run the country or I can control Alice. I cannot do both." President George W. Bush appears to have a similar problem, and so long as the Bush twins continue to misbehave, the media exploitation of these young ladies is likely to continue.

The practical likelihood of legal issues surrounding such exploitation ever being litigated in a courtroom may be low. But the twins' plight certainly shows the problems confronting public people who would rather be private people — and private figures for purposes of the law.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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