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Britney Spears's Suit Against US Weekly: Can She Be Libeled? You Bet.

Tuesday, Jan. 03, 2006

Recently, New York Times reporter David Carr commented on Britney Spears' libel suit against US Weekly. In his piece, Carr asked if it's still possible that "Britney Spears can be libeled."

In this column, I'll explain why the answer is a resounding yes.

The Substance of the Article: A Sex Video Shown at a Meeting with Lawyers

US Weekly reported in October that Spears and her husband, Kevin Federline, had filmed an X-rated video of themselves and were worried that a member of their entourage might release it.

According to her lawyer, Spears has been hurt by US Weekly's claim that she and Federline met with their attorneys and showed them the tape. Her complaint, according to CNN, says, in substance, that "the entire story is false -- there is no such X-rated tape, no member of her entourage had threatened to release any such video and no such video was shown to the couple's lawyers."

Also at issue is US Weekly's claim that Spears and Federline were "acting goofy." Carr reads the article to suggest they were acting goofy on the videotape; Spears's lawyer reads it to suggest that they were acting goofy at the meeting with the attorneys while the tape was being shown. The article is arguably ambiguous as to which meaning is correct.

The Issue Is Not Who Is "Libel-Proof?"; It's What Is "Substantial Truth"?

Carr's comment may be somewhat tongue-in-cheek, but he does give specific evidence that, in his view, suggests that Spears can no longer be libeled.

The law defines libel as a false statement of fact, made with the requisite state of mind, that causes harm. In the case of a public figure like Spears, the state of mind is "actual malice" - defined in Supreme Court precedent as a subjective awareness that the statement of fact is probably false. (Is Federline a "public figure"? Probably - though it seems somewhat unfair if celebrity spouses become automatic public figures. Still, if Federline wants to deny public figure status, his new website, and incipient rap career, will count against him.)

Carr points out, in support of his suggestion that Spears is libel-proof, that Spears's "first marriage lasted a couple of days before it was annulled; she hardly seemed shy about using photos of her second wedding to her public advantage; she professed her undying love for Mr. Federline in a show they made together called 'Chaotic'; and then she proceeded to fall out with him after they had a child. And then, just as quickly, they fell back together." He also notes that throughout 'Chaotic,' Spears and Federline "seemed on the verge of tearing each other's clothes off," and that her image -- "a very adult version of pop tart" - is "built on very vivid sexual entendre."

Does this evidence have any legal relevance? Yes, but not quite in the way Carr suggests.

Carr's wording seems to suggest that Spears might be libel-proof -- meaning Spears cannot be libeled or defamed, for her reputation, at least in the area of sexuality, has already sunk to a low point. But in practice, courts have, in the main, reserved the "libel-proof" designation, in the main, for those who commit particular heinous murders or similarly grave criminal offenses.

The idea is that the plaintiff's reputation is so poor, it could hardly be further injured. Yet only the very snarky could claim that this is truly the case with Spears: Seeking publicity and performing suggestively on stage are hardly disreputable in the music industry. Also, claiming Spears's reputation is that poor only plays into the unpleasant and sexist virgin/whore distinction: It can't be the case that merely by being sexy and admitting she has sex, Spears opens herself up to any possible allegation about any possible sexual practice - from S&M all the way to bestiality - on the theory that her virtue has already somehow gone out the door. So a fine line must be drawn: Claming she's indulged in practices such as the public displays of affection in "Chaotic" won't lower Britney's reputation - but claiming she went quite a bit further, actually might.

(In a prior column, I argued that it may be time for the law to get rid of the idea that a claim of promiscuity or "groupie" status is defamatory, because it plays into the same sexist virgin/whore stereotype: that women who have sex are bad. But getting rid of that stereotype doesn't necessarily entail victimizing women who do have sex, by allowing knowingly false claims that they engage in every sexual practice under the sun, on the ground that the public already knows they are sexually active.)

So Spears doesn't really risk being deemed "libel-proof," as Carr suggests. Rather, the factor that might be an obstacle for a suit by Spears, instead, is the doctrine of "substantial truth."

Could Spears Lose Her Suit Based on a Judgment of the Story's "Substantial Truth"?

Especially because defamation defendants have the First Amendment on their side, courts in such suits do not allow plaintiffs to split hairs: An article need not be true in every detail, as long as its substance is true.

So, for instance, if Tara Reid in fact gets drunk in a particular bar on a Tuesday night, she cannot sue on a false allegation that she got drunk in a different bar that was across town on the following Friday. Moreover, that's true even if the publication that made the claim knew full well that the story it was publishing was false, and even if it had no idea about the real Tuesday night incident.

In short, defamation defendants can luck out, if their coverage just happens to be more or less true. That's because a defamation case against a public figure like Spears or Reid requires not only that the publisher of the statement believe the statement was probably false, but also that the statement was actually false.

This rule frustrates stars quite a bit - because it really does operate, in practice, as a license for publications to simply lie, as long as the lie falls in the general area of a vice a given celebrity is already known to have. (Publications should beware, though: There is no substantial truth protection after a publicly-known visit to rehab for the vice at issue. So a claim of a Kate Moss drug relapse, right now, would be highly defamatory.)

Why does the law let liars prosper in this way? The short answer is that policing the difference between perfect truth and substantial truth would inhibit free expression. For instance, if a celebrity is photographed shopping every other day for a month, a court probably will allow a publication to call her a compulsive shopper. And if she's cheated on three boyfriends in a row, a false report she's cheated on a fourth isn't worth her suing on; unless she's publicly claimed that she's reformed - or gone into sex addiction rehab - the fourth cheating report counts as "substantially true" if the prior three are actually true. Unfair? Yes - but this unfairness allows a wide margin for free speech, and that's a good thing. As I explained in a previous column about South Park and Tom Cruise, an unfortunate cost of having broad First Amendment rights is that they can provide a refuge for rogues.

Moreover, the substantial truth doctrine is a fairly innocuous case of the general phenomenon of First Amendment rights being broadly interpreted to protect even some statements that would otherwise be deemed defamatory: In our hypothetical Reid case - and all those falling under the "substantial truth" doctrine - the false statement was, by definition, no more hurtful than the truth. Other protected material - such as satire or parody - may be extremely hurtful, much more so than the truth they distort, and yet still enjoy First Amendment protection.

Is What US Weekly Said about Spears "Substantially True"?

So, if US Weekly's account is substantially true, the publication is in the clear. But is it?

To begin, it's helpful for the magazine's case that "Chaotic" was presented as truth. Indeed, Britney asked viewers, "Can you handle my truth?" Thus, if the substance of "Chaotic" were the same as the substance of the US Weekly article, Spears might not have a libel suit.

Unfortunately for US Weekly, though, I think a "substantial truth" argument is unlikely to work here. Many couples who might talk about their lovemaking, as Spears and Federline reportedly did in "Chaotic," and make out enthusiastically on a balcony in public view - photographs have been published in which Spears appears to be gripping Federline's groin -- would still draw the line at making an X-rated video of themselves.

Moreover, the additional "acting goofy" allegation - however one reads it - hurts US Weekly's case. "Acting goofy" while showing one's X-rated video to a roomful of lawyers seems substantially different than tearfully showing one's X-rated video to a roomful of lawyers, because one has to do so, in order to sue. US Weekly may want to argue that "acting goofy" could just as easily connote embarrassment and discomfort, as crudeness and exhibitionism - but a court might hold the publication responsible for both of these interpretations, and refuse to adopt the one more favorable to the defendant.

Similarly, while the issue is a much closer one, "acting goofy" in an X-rated video seems rather different (and perhaps more harmful to reputation) than acting loving in such a video. On the other hand, Pamela Anderson and Tommy Lee certainly acted goofy in their X-rated home video - and no harm to either's reputation seemingly was done. Thus, if there actually were a video, the extra "acting goofy" allegation might not mean much.

However, if there is no video, as Spears claims, then jurors may see the "acting goofy" claim as US Weekly's putting salt in the wound its article already would have caused.

In sum, US Weekly should be worried about this lawsuit. If it's indeed true that no X-rated tape exists, and no meeting with lawyers took place, then discovery could be quite narrow, and Spears's case might be a slam-dunk.

Often, celebrities decline to bring cases like this because they don't want to suffer extensive civil discovery into their sex life. But when allegations are very specific and concrete, and go a step further than any prior report, celebrities may be much less reluctant - and discovery may be much narrower.

Tabloids' upping the ante, may mean that celebrities go to court - so even if a star has a clear image, pushing the image much further in that direction, may still defame.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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