Why It Was A Mistake for a California Judge To Dismiss Britney Spears's Defamation Lawsuit Against US Weekly

On November 6, California Superior Court Judge Lisa Hart Cole made headlines when she issued a decision that threw Britney Spears's defamation suit against US Weekly out of court. (As US Weekly had requested, Judge Cole invoked California law designed to stop frivolous defamation suits at an early stage.)

In this column, I'll argue that Judge Cole's decision was in error, and should be reversed on appeal.

The Judge Wrongly Ignored Part of Spears' Claim

In a prior column, I argued that Spears's case seemed strong. US Weekly had reported that she and husband Kevin Federline had made a sex video. It had also reported that they "acted goofy" in their lawyers' office when discussing the possibility of the video's unauthorized public release. Spears countered that there was never any such video, and thus no such meeting with attorneys.

Judge Cole made short work of Spears's claim that she was defamed by the statement that she and Federline had made a sex video. The judge reasoned that, in this day and age, such a report may, as a general matter, no longer be defamatory - and certainly is not defamatory as to a couple who put their sexuality "squarely, and profitably, before the public eye." (Spears and Federline included sexually explicit material in their reality show "Chaotic"; Spears has given sexually provocative performances and approved the publication of sexually provocative photographs.)

Up to this point, the judge's decision was a reasonable one.

But what about the claim that Spears "acted goofy" at the meeting with attorneys? While Judge Cole carefully analyzed Spears's other claim, she shunted this one to the side - writing dismissively, "It is clear that [Spears] did not bring this lawsuit because she was falsely accused of acting goofy."

But it's not a judge's proper role to say, "Well, never mind this valid claim that you've included, because I can tell you only really care about the other claim."

Why Spears brought the suit is, frankly, none of the judge's concern; the judge's only concern ought to be its legal validity.

Moreover, Spears's "acting goofy" claim was far from legally baseless. Indeed, it was the better of her two claims.

The Damage That Can Be Wrought by a False Accusation of "Acting Goofy"

The court wrongly slighted Spears' claim by simply referring to it as a claim that she "acted goofy" - without providing any context. A claim that Spears acted goofy at an amusement park would obviously not be defamatory. But US Weekly claimed that she acted goofy when she learned that her private sex video was going to be sold by a stranger as porn for public consumption. In other words, it suggested that she thought being transformed from pop star to porn star was no big deal.

Such a claim can plainly be damaging. Spears's fan base consists of teens and young adults - many of whose parents may have a relatively conservative view of sex. Although as she's gotten older, Spears's sexuality has gotten more explicit, her music videos remain very far from X-rated. For this reason, a change in her image could seriously hurt her album and ticket sales.

Judge Cole did note that in "Chaotic," there was a scene in which Federline was naked in the shower, and one in which Spears was naked while interviewing Federline. But such playful nudity is hardly tantamount to doing hardcore porn.

The law needs to recognize women's ability to control their sexuality, and especially to control public access to it. The argument the judge accepted wrongly blurs the line between the airing of "Chaotic," to which Spears consented, and the distribution of her sex video as porn, to which she did not.

The Part of Spears's Claim that the Judge Ignored Was Arguably the Most Important

One might try to defend Judge Cole's opinion by arguing that she focused on Spears's major claim, not her minor one. But upon closer inspection, it turns out that Spears's "acting goofy" claim wasn't merely some kind of minor sideshow; it was the main event.

To see why, consider what happened with Paris Hilton and her infamous sex video.

Defamation is all about reputation. It seems that Paris Hilton's reputation hasn't been hurt much by the simple fact that she made a sex video with her then-boyfriend.

But I think her reputation would have been hurt much more had it been proven that she wasn't particularly troubled by its release.

Significantly, that also seems to be the strong view of Hilton herself, as well as her family. After all, they have taken pains, and filed lawsuits, that make sure to portray Hilton as a victim and to emphasize that the video's release (it was leaked onto the Internet in November 2003) was extremely painful for her.

Even now, the Hiltons continue to stress the scar the video release left: This year, Paris's mother, Kathy, emphasized in an interview (ironically, one about her own reality show) that the tape's release "was very painful. Very painful. Very painful."

Regardless of whether Paris and her family are just posturing, or she is truly hurt by the video's existence, or both, what's clear is that the Hiltons - who have an exceptionally keen appreciation for public relations - still stress, three years later, how painful the public release of Paris's video was.

It seems clear, then, that the P.R.-savvy Hiltons believe that the public will think less of Paris if it thinks she was not troubled by, or hurt by, the video's release. They're right - because there's a social stigma on a celebrity's, in effect, doing hardcore porn. Pop star/porn star crossover is still exceedingly rare - and it typically goes in the other direction (as with Traci Lords).

The "Actual Malice" Standard Provided Plenty of Protection for US Weekly

Those who are concerned about US Weekly's First Amendment rights - and I'm among them - need not embrace Judge Cole's decision. US Weekly probably would ultimately have prevailed in this case. My point is simply that the judge was wrong to dismiss this case as, in effect, frivolous, at this early stage.

As I noted in my previous column, I suspect this story is factually baseless. That's because I don't think Spears - who isn't particularly litigious - would have sued if there were something to the story. The last thing she needs is more bad publicity - the kind she would get by claiming true statements were false. She's complained about "false tabloids" before; my guess is that she fastened on this story as a good one to sue on precisely because it was totally false.

But that doesn't mean US Weekly would ultimately have lost its case. If Spears is lying, US Weekly could quickly prove it: For example, Spears's lawyers could be required to answer under oath whether the meeting reported, actually occurred, and whether, to their knowledge, a sex video existed. (Though attorney-client conversations are privileged, Spears arguably effected a limited waiver of that privilege by bringing her suit: You can't both say a magazine is lying about your meeting with attorneys, and refuse to allow discovery about that meeting.)

And even if Spears is telling the truth, proof of falsity is not enough to win a defamation case. As a public figure, Spears would have to prove that US Weekly possessed "actual malice" -- defined by the Supreme Court, in St. Amant v. Thompson as a subjective awareness of the probable falsity of its report. In other words, she would have to prove that the reporters and editors at US Weekly, at a minimum, in fact knew (not just should have known) that the story they were printing was "probably false" - more likely false than true.

If Spears can meet this high standard, some bad conduct occurred at US Weekly. That probably isn't the case - and thus US Weekly would likely have won the suit even without this ruling. But early dismissals like this, which deny full discovery (the judge did note that Spears received some limited discovery on the "malice" issue), mean we'll never really know.

Tabloids May Have A Field Day With Their New "License to Defame" Spears and Others

Spears case sends an unfortunate message to the press - providing, in effect, a license to knowingly publish false reports about alleged sexual conduct by celebrities who have been publicly open about their sexuality. If publications can get decisions like this one that reject suits based on such reports before discovery, then they may be able to act with actual malice - that is, to knowingly publish claims they know are probably false -- willy-nilly.

Will we next see ugly claims about sexual conduct by the celebrities who have recently come out as gay - including Lance Bass, Grey's Anatomy's T.J. Knight, and Doogie Howser's Neil Patrick Harris? Being frank and open about one's sexuality should not mean becoming fair game.