F ame entails a life in the spotlight. However, even celebrities hope to keep both literal and figurative parts of themselves private. Regardless of their desires, stories detailing celebrity arrests, divorces, and, in the most lurid cases, their very bodies are a common fixture of American news. What recourse does the rich and famous have?
American law is unclear about whether celebrities can recover damages or secure an injunction based on invasion of privacy. The people who obtained the material, if they somehow invaded the privacy of a famous person’s home or hard drive, will be swept up by the criminal justice system, but what civil actions are available particularly against those who do not use illegal means to obtain delicate images or information? In terms of the publishers, celebrities, by virtue of their fame, have a higher bar to clear than ordinary citizens to recover civil damages against people who disseminate this material. Courts have generally held media outlets can publish material “of legitimate interest to the public,” and specifies that even relaying what would ordinarily be private information about public figures, the limits of “common decency” may not be an invasion of privacy. Restatement (Second) of Torts: Publicity Given to Private Life §652D (1977). It urges that the standards of the community be used in making judgment as to what truly constitutes “news,” and what is simply a facilitator of mass voyeurism. Id.
If someone ever does go forward with a suit, their ability to triumph should depend upon the content of the material. Courts must balance privacy interests with freedom of the press, and the public’s right to information. In the common case of nude photos, standards of decency seem to dictate that an invasion of privacy has always occurred. However, any material that reveals an opinion or action be considered more carefully. Celebrities, in essence, market themselves as commodities, hoping for the public’s money and attention. Unlike, for example, most business owners, they encourage people to see movies, attend sporting events, and buy certain products at least in part because of their celebrity which in society creates a sense of authority for good or ill. The public has an interest in knowing what sort of people are profiting through its patronage. A family going to the movies may have a legitimate desire to know they are not bolstering the career of an anti-Semite, a wife-beater, or an amateur jewel thief. However, the line between a legitimate and unreasonable desire might be hard to draw. Courts should look to the nature of the action being publicized, as well as the source of the celebrity’s fame. For example, an archbishop’s sexual relations with a college student are of a more newsworthy nature than an athlete, since the former’s moral character is more clearly linked with his or her notoriety. Courts will, undoubtedly, face a difficult balancing test. However, if they attempt to enact one, famous people can rest easier, and the rest of us will have the benefit of a less lurid news cycle.
Tim Fleming is a 1L at Harvard Law School.