DOES CELEBRITY DESTROY PRIVACY?
Naomi Campbell And Narcotics Anonymous

By JULIE HILDEN


julhil@aol.com
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Tuesday, Apr. 02, 2002

Last week, supermodel Naomi Campbell won $5,000 in damages in her lawsuit against the London tabloid newspaper The Mirror. The Mirror had published a photograph of Campbell leaving a Narcotics Anonymous meeting. As a result, Campbell had sued, pursuant to British law, for breach of confidence, unlawful invasion of privacy, and violation of the U.K.'s Data Protection Act.

While the judge chastised Campbell for lying both under oath and to the media, he nevertheless found she had sufficiently proved her claims. Despite the judge's comments, and the modest damages award, Campbell clearly considers the ruling a victory in her battle with the media over her privacy; her lawyer noted that she was "delighted."

Unlike in Britain, where there is no formal First Amendment, a suit like Campbell's would probably not be allowed to succeed in the United States. Here, privacy law in most states is relatively narrow. In addition, the First Amendment limits how successful a privacy action can be, by protecting disclosure of information that, while arguably private, is also deemed newsworthy.

Furthermore, while statutes here do provide special protection for medical information, it is unclear whether attendance at a Narcotics Anonymous meeting would qualify. And these statutes themselves may well violate the First Amendment by going too far to restrict the publication of newsworthy information.

Yet despite difference between the British and American legal systems, the Campbell case raises an important and highly debatable issue that recurs in the U.S., too: Does a celebrity have any privacy left to protect?

Campbell's attorney said yes, contending that the verdict in Campbell's favor showed that "anyone in the public eye, whether through choice or inadvertently, is entitled to protection for their private lives." But others have found the point much less clear, or stated it much less broadly, and for good reason.

A better answer is that although celebrities have lost some aspects of their privacy, they should be able to retain others. Furthermore, a celebrity's private life is not an oxymoron. Rather, it is something the celebrity herself can either defend - by keeping the topic off-limits in interviews - or destroy, by making herself a role model for a lifestyle that, in truth, she does not follow.

The Public/Private Mix in Campbell's Case - and Those of Other Celebrities

The Campbell case provides an excellent lens into the extremes a celebrity privacy lawsuit often - indeed, even typically - can present, because it so thoroughly mixes the public and private aspects of Campbell's life in the spotlight and out of it. Accordingly, it presents difficult questions as to which aspects of Campbell's life are truly private, and which should be public knowledge.

Campbell, of course, is a world-famous public figure who has based her career on the widespread dissemination of photographs of her image. In that sense, she is one of the world's most "public" people.

Yet the activities Campbell sought to keep secret - her past use of narcotics and her more recent attendance at the NA meeting - occurred in private, either alone or in groups of trusted friends or co-members of NA. (NA meeting attendees pledge to keep proceedings confidential). Moreover, the drug use and, presumably, subsequent detox that Campbell sought to cover up involved her body - traditionally an intense locus of privacy concerns.

On the other hand, the drug use Campbell wanted to keep secret was also an illegal activity, and her "privacy" could at any point have been interrupted by a very public arrest, prosecution, and trial. And though the NA meeting Campbell attended was private, anyone willing to profess to be an addict could, in theory, attend, and find out she had used drugs.

Moreover, Campbell was photographed not at the meeting, but afterwards, on the street - where anyone could freely view her. Finally, one might argue that because Campbell was disingenuous with the media about her drug use for years - as the judge in her case made clear - the fact that she did, indeed, use drugs makes her case newsworthy.

Is Disclosure of Private Facts About Celebrities Justified?

Often, it is the intensely private aspects of a celebrity's life - involving drugs, sex or sexual orientation, marital discord, issues with children or other family members, or similar topics - that the public and the media deem newsworthy. (Illegality only ratchets up the stakes, and increases interest in the story.) But is the public entitled to know such private details about a celebrity, just because that person is a public figure?

Two basic theories are used to justify the exposure of celebrity privacy. One is the "waiver theory" - which holds that celebrities have given up their privacy by choosing to appear in the public eye. Those who believe in this theory see celebrities as having made a sort of Faustian bargain: lifelong fame in exchange for the lifelong loss of privacy.

Another widely cited argument for celebrities having forfeited their privacy is what I will call the "hypocrisy theory." It holds that celebrities who in their statements to the public have lied about, or deceptively omitted, a private fact about themselves, cannot then complain when the truth becomes known.

Neither of these theories is entirely valid, but the "waiver" theory is by far the weaker of the two. It seems somewhat unfair to say that because a person's gift lies in acting, basketball, or singing, rather than, for example, engineering, architecture, or computer science, that he or she has somehow "chosen" to give up all of his or her privacy.

Indeed, it seems likely that personality type, rather than profession or experience, may often be the best determinant of how painful and damaging a privacy breach will be to a particular person. Robert Redford, recently honored at the Oscars, still says he is a shy person. In addition, enjoying the "exposure" of acting or singing or playing great football is very different from enjoying - or even being able to tolerate - the exposure of having one's sex life, marital strife, or battles with addiction in the newspaper every day.

Moreover, saying that prior privacy breaches caused by the celebrity's high profile make a current breach less toxic, is like saying that being unwittingly photographed in the nude is easier the second time it occurs. My guess is that, for most celebrities, loss of privacy hurts anew every time. And even if it does not, the mere fact that someone may become inured to past invasions of privacy provides little, if any, justification for allowing a new invasion to occur.

Should Celebrities Have As Much Privacy As Ordinary Citizens?

This analysis - which definitively rejects the "waiver theory" - might suggest that celebrities should enjoy as much privacy as ordinary citizens. But, in one respect, celebrities truly are different from ordinary citizens. Most indulge in presenting some story of their life to the public - writing, in this sense, a melodrama to which they invite the public to be an audience.

Once celebrities begin to write their stories for us, it seems reasonable to expect that what they present as true, ought in fact to be true - and if it is not, the media should be able to call them on it. The judge in Campbell's case suggested as much when he noted critically that Campbell had been "manipulative and selective in what she has chosen to reveal about herself" over the years.

Does that, then, mean the "hypocrisy theory," which justifies the publication of private facts about celebrities in some circumstances, is correct? To some extent, I would say yes. In addition, hypocrisy should be broadly construed. For First Amendment reasons, we should give newspapers, including tabloids, extremely wide latitude in the interpretation of what behavior, or comments, count as hypocritical, and thus forfeit privacy rights celebrities otherwise rightfully could claim.

We should not, however, imagine hypocrisy where there is none. Suppose, for example, that a celebrity who has never claimed to be a paragon of virtue issues a false denial - rather than an admission that would infringe her privacy - when allegations about her private life are made. We should not view the false denial alone as a license for the media to print private facts about her, regardless of the harm.

Consider Campbell's denials of her drug use. The truth is that, when asked about possible drug use by reporters, Campbell had little choice but to lie. The truth about Campbell's drug use - which she owed to a judge, but not necessarily to an interviewer - might have put her in prison. And it certainly would have forced her to expose to the public what goes on in her home and with her body, areas she ought to be able to protect.

Had Campbell decided to appoint herself a poster girl for clean living, the situation might have been different, but she did not. Her image as a "bad girl" or "brat" in the modeling world is well-known, and has been reiterated over and over by the same British tabloids that later trumpeted her drug abuse.

Thus, the judge was wrong to fault Campbell, in his ruling, for having "shown herself to be, over the years, lacking in frankness and veracity with the media." When private facts are at issue, a celebrity need not always be frank and truthful - any more than they need appear at a photo shoot nude simply because the photographer and the public would prefer it. They need only refrain from publicizing a factually false image that sets a standard at odds with the truth about their private lives.

One might object that Campbell should not be forgiven for her denials, because she had another option: She might have provided an accurate, and privacy-protecting "no comment." It is true that this would have been a courageous solution, but it should not be a required one. Many "no comments" are interpreted as admissions, or seen as raising more, and more invasive, questions. They might even invite a criminal investigation. At a minimum, they tend to draw media focus to the celebrity's refusal to deny.

Putting denials aside, the hypocrisy argument is a strong one in favor of allowing media coverage of celebrities' private lives in certain circumstances. If a calculated public image collides with private reality, the media has the right to inquire. In the end, it is largely up to celebrities to draw and police their own lines of privacy - and that is as it should be.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99, where clients in whose representation she assisted included tabloid newspapers. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in French translation by Actes Sud.

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