Barbra Streisand, Miss Vermont, And Your Website

An anonymous reader writes "The NYTimes (sign up for free subscription) is reporting about a person who wrote about a prior relationship with a former Miss Vermont. He was ordered to remove any reference to the former Miss Vermont or the relationship by court order. This ruling has obvious implications for the First Amendment if allowed to stand. I wonder if I can get the same court order applied to my ex-girlfriends' websites." Read on to see what this has to do with Barbra Streisand.

An anonymous reader writes "A Silicon Valley millionaire, Ken Adelman, is being sued by Barbra Streisand for $50 million. Adelman photographed Streisand's sea-side Malibu mansion using a 6 megapixel Nikon digital camera from a helicopter flying over the Pacific Ocean. The photograph, along with over 12,000 other photographs, is part of an aerial photographic survey of the California coastline. This photographic database is intended for use by environmental and scientific research projects interested in the health of the coastline and coastal erosion. Streisand's suit complains that the photograph is of extraordinary clarity and violates her right to privacy, as it shows details of the property that one would not ordinarily be able to see from the road or the beach. California has an 'anti-paparazzi' statute on the books."

Comments

Check out the self-admitted bullshit:

[drinkypoo]

Ms. Johnson did not respond to telephone and e-mail messages seeking comment. In her lawsuit, Ms. Johnson maintained that Mr. Max had invaded her privacy by publishing accurate information about her and had used her name and picture for commercial purposes.

Followed somewhat later by

Mr. Santucci did provide a copy of a news release he issued after the order was issued. "This victory should send a clear message to all parasitic smut peddlers who live off the good names of others," he said in the release, which also noted that Ms. Johnson "emphatically denies the story contained on Tucker Max's Web site."

Okay SO. Is the story accurate, or does she emphatically deny it?

As the article notes:

[...]raises difficult issues, Professor Zimmerman said.
"If you're telling people they can't talk about something like this," she said of Mr. Max's memoir, "you're also telling them they can't talk about their own lives."

This is exactly the basis to throw this case out of court. The judge, however, was obviously under some kind of pressure to issue the order, or is completely unfamiliar with the first amendment, or simply does not believe in it. If the story is inaccurate then it is clearly libel. If the story is not inaccurate, then on what grounds do you decide that it is not protected speech? The woman is a public figure, which means you pretty much waive your right to privacy anyway, but even if she didn't, if she does something in front of someone, they have the right to report it so long as they do so accurately.

Streissand has a point

[Keith Mickunas]

I don't like the woman at all, as I'm sure most /. readers don't, but that doesn't matter. She does have a right to privacy. There was no reason for her name to be mentioned on that website. One point in the lawsuit specifically states that the house is not listed in public records under her name. Like most of her property its registered under a corporate identity that can't be easily connected to her to protect her privacy. I can't help but wonder what would have happened if he hadn't disclosed the name of the owner, which is not required for the purposes of his site.

Re:Streissand has a point

[fishbowl]

>She does have a right to privacy.

Does she? And does it trump the guy's Constitutional right to free speech?

Where in the Constitution is your right to privacy codified, and what are the precise words? Contrast this with precise and clear
unequivocal grant of the right to speech, and
then explain how this ruling will stand up to judicial review.

Re:Streissand has a point

[MillionthMonkey]

>>She does have a right to privacy.

>Does she? And does it trump the guy's Constitutional right to free speech?
>Where in the Constitution is your right to privacy codified, and what are the precise words? Contrast this with precise and clear unequivocal grant of the right to speech, and then explain how this ruling will stand up to judicial review.

I didn't write this- my wife wrote it in an earlier post two weeks ago. But it looks like it will fit here.

The right to privacy was originally a right derived from Common Law. We all have heard the expression "An Englishman's home is his Castle." This was the rough summary of the right to privacy enjoyed by freemen in England. Of course, it was an ideal, and was not perfectly executed in practice, but the same could be said of much that goes on in this country.

In the US, much of our law is based on a combination of British Common Law, Statutory, and Constitutional law. And, once a statute is written that enumerates what was previously common law, the statutory meaning takes precedence. For instance, under Common Law, all that is required for a conspiracy conviction is evidence of a plan. You don't need to take any steps to enact the plan to be found guilty. But Statutory Conspiracy requires a plan, plus an act in furtherance of that plan, such as contacting someone to help, or buying a supply. This change was made in an attempt to avoid the concept of "thought crimes." But, if you have the misfortune of living in a state that does not have a statute defining Conspiracy, you are STILL subject to the common law "plan = conspiracy" standard.

The right to privacy was one of those unspoken, but widely accepted theories of British Common Law. But with the publication and ratification of the US Constitution, many areas of Common Law became statutory. Nowadays, the right to privacy is a statutory one, carved out of the intersection of individual rights derived from the 1st, 4th, 5th, 6th, and 14th ammendments. For instance, the 5th ammendment gives you the right not to self-incriminate, the 4th gives you protection from unreasonable searches and seizures, and the 14th and 6th amendments insure that you have due process rights (although this seems to fly over the head of the Bush Administration). In the middle of the 20th century, the USSC began to interpret the nexus of these rights as creating an area of individual activity that should be free from government interference. Some of the more famous cases, Griswold v. Connecticut and progeny, Roe v. Wade and progeny, found that while the right to privacy was not enumerated, it was implied, in the same way that if you say "I consult with my attorney Monday through Sunday," you have implied that you also talk to your attorney Tuesday, Wednesday, etc.

First Amendment concerns have previously been found insufficient to justify terroristic threats. The 9th U.S. Circuit Court of Appeals found that the Nuremberg Files did not enjoy First Amendment protections in listing the names and addresses of doctors on the Internet. A court in April ruled that burning crosses does not enjoy First Amendment protections either. And of course, First Amendment concerns may sometimes conflict with property rights (as in the case of spam). There is no right that is absolute and that trumps all others. You have to consider the situation.

I don't know what's going on with Streisand, since the story doesn't seem to mention her at all. But it seems to me that you're insisting she has no right to privacy because you don't like her. But if she has no right to privacy, neither do you.

Re:Streissand has a point

[Sycraft-fu]

Not really. First, laws limiting the government are not construed to be likewise limiting the people. For example the first ammendment declares that the government may not limit speech. However, a person may very well do so. I can require that you not swear if you want to enter my house. If you do swear, I can then kick you out. I am limiting your free speech in my house, but that's fine. The law doesn't say that you are free to say whatever you want whenever you want and noone can do anything about it, it says that the government can't make a law restricting your speech and you can therefore speak freely in public places.

Also notice that the text of the law deals with warrants. The idea is that police officers can compel a search of your house. This is something normal people can't do. I can't force my way in and search your place, that's breaking and entering. Well, neither can the police unless they get a warrant, which they require probable cause to get. So this law gives the police special rights that normal citizens don't have, but places limits on those rights.

Also I see nothing in the constitution, and nothing I remember from case law, that would support the fact that you can't photograph the outside of someone's house. It is done ALL the time for lots of reasons. I also don't see or know of anything that gaurentees you a right to secrecy, which is really what Streistand wants. Her privacy wasnt' viloated, he didn't enter her house, photgraph the inside or anything like that. All he did was reveal the generally secret fact that it belonged to her. I fail to see how this is doing anything wrong or how secrecy is in any way legally protected in this case.

Re:Streissand has a point

[DarkZero]

don't like the woman at all, as I'm sure most /. readers don't, but that doesn't matter. She does have a right to privacy. There was no reason for her name to be mentioned on that website. One point in the lawsuit specifically states that the house is not listed in public records under her name. Like most of her property its registered under a corporate identity that can't be easily connected to her to protect her privacy. I can't help but wonder what would have happened if he hadn't disclosed the name of the owner, which is not required for the purposes of his site.

Holy shit! Not only do people not have the right to view my lawn and the exterior of my home, but they also don't have the right to figure out who owns it? I better call my lawyer, but I've got an entire neighborhood to sue. I've also got to go down to the local sign shop and print up a nice, big sign saying, "Thank you for driving by. My lawyer will be contacting you later today."

I'm definitely in favor of privacy rights, but those rights should not extend to things that you can see on my block with the naked eye. It also shouldn't be applied selectively to celebrities. If someone can take a snapshot of my home and say who lives there, then they should be able to do the same thing for Barbara Streisand.

No Rocks For YOU Ms. Streisand!

[ackthpt]

What a poop-head. And as soon as the next storm comes along and carves away more of her sandstone she'll have her mouthpiece (or maybe even herself if she's not to shy about the size of the audience) beg for a pile of rocks to save her precious shack from tumbling into the Pacific as nature goes about it's inevitable business.

"Sorry, but we have no photographic record of how your coastline used to look, so we, and the good taxpayers, will just assume it's always had that room hanging over the ocean."

Close your eyes when on an airplane or cruise ship

[Brian_Ellenberger]

Streisand's suit complains that the photograph is of extraordinary clarity and violates her right to privacy, as it shows details of the property that one would not ordinarily be able to see from the road or the beach.

So under "right to privacy", we are never allowed to include someone's home in a photograph? I guess that makes this product completely illegal.

Or is it only rich and famous Hollywood stars whose homes are covered by "privacy" acts. After all, who would want to look at a picture of my shaby old 200K home.

Streisand only seems like she is for the "little people" when it benefits her---either by raising publicity for her or by making her feel better by "fighting the EVIL REPUBLICANS". Strange that it is *HER* that is fighting this environmentalist's work and not some land developer or corporate polluter. But you can be sure if she wins, every land developer and corporate polluter will be using her case as a precedent. After all, don't they and their workers deserve privacy as well?

Brian Ellenberger

heat/kitchen

[Restil]

This is pretty much a slam dunk for free speach. His comments, by her own admission, are accurate, so she can't claim libel. She's a public figure, so she can't whine about privacy. If she wanted privacy in her life, the best way to accomplish that was to not strut around in a swimming suit for a national public audience. OF COURSE old boyfriends are going to come back from the dead when you reach celebrity status. If you're going to be a celebrity, make sure there isn't anything in your past that's going to embarrass you or others, or learn to live with the fact that somewhere out there some nutball is going to get his two minutes of fame by telling a story that nobody really cares about anyway. Well, the tabloids will care, but they're just as likely to make something up anyway, probably something worse.

-Restil

Clinton?

[grub]

Sooooo... you can't write about a former girlfriend, yet any and all dirt on Bill Clinton (a President, no less) including cigars, cum stains and other sordid crud is suitable for public consumption?

Re:laws against harassment == "threat to 1st Amend

[kaltkalt]

She's holding herself out as a public figure (and she is one by being miss vermont, anyway). As the lawyer said, the public has an interest in knowing if she lives up to the image she is portraying of herself. She's milking her public figure status for money/attention. It's a two-way street. If you are a public figure portraying yourself as a model of morality, the public always has an interest in knowing if you're full of bullshit and really an immoral piece of shit. For examle, Bill Bennett. He constantly holds himself out as a czar of morality, and the Right treats him as such. He's come out against porn, gambling, abortion, homosexuals, etc. So, when it turns out he has a huge gambling problem and has lost over a million bucks in casinos, the public has an interest in knowing that. If it were you or me (poor schlub nobody knows about) then making a website saying we have gambling problems may constitute harassment. Maybe. It would actually be more of a "false-light invasion of privacy" cause of action, and not all states have that.

Re:If only...

[danb35]

Judge Lewis ruled on May 6, before Mr. Max was notified of the suit and without holding a hearing.

Based mostly on this statement, I'd guess that Judge Lewis's order was a Temporary Restraining Order, or TRO. A TRO is a fairly common device used when immediate action is needed, can be issued on an ex parte basis (as seems to have been the case here), and is (as the name implies) temporary--I believe in some jurisdictions they can only last 10 days or so. IOW, this didn't decide the case, it just put the order in place as a stop-gap measure to prevent the "irreversible harm" that supposedly would have happened if the order had not been issued. During that 10-day (or whatever) period, both parties can present evidence to the court, who can then decide whether to issue a preliminary injunction while a full trial is pending. If the plaintiff wins at trial, a permanent injunction can be issued. This order is just the beginning.

Even as a TRO, Lewis's order sounds very (probably unconstitutionally) broad. The only possible justification for such an order that I can see is a theory of invasion of privacy, but I doubt that would apply to the bulk of the events described in Google's cache of the article--if true, most of them were witnessed by other people, and many of them by lots of other people. Not much privacy there. However, the invasion of privacy theory can be used to stop the publication of true statements (suppose you were to publish my complete credit history--it'd be true, so I couldn't sue for libel, but it'd certainly be an invasion of privacy, and I could get an injunction against it), which is why I think it's the only possible justification for this order.

The rationale, I expect, goes something like this: If the statements are true and non-private, and we stop publication for a couple of weeks while we (the court) verify that, Max isn't harmed too much. However, if they aren't, and we don't, Johnson's reputation could be permanently damaged.

In a nutshell, Lewis's order is troubling, but it's not yet time to panic. I'll be interested to see how the case progresses, though. And FWIW, IAAL, but this isn't legal advice, you aren't my clients, etc.

Re:What if you could see inside her house?

[liquidsin]

I don't really think this is a first ammendment issue. This is about reasonable expectation of privacy. A photo taken from a public place of the outside of a building shouldn't be considered to be violating a reasonable expectation of privacy. A photo taken through and uncovered window probably would violate that privacy. By the same token, using strange magic to photograph the inside of the home is probably a violation of privacy too. Would you want the cops too see straight through your walls and catch a glimpse of the bong on the table? Probably not...

Since when does the Times check out its stories?

[L. J. Beauregard]

Did it not occur to anyone at the NY Times or other papers to check this? I have seen the same error in several places.

Have you forgotten Jayson Blair already?

Re:Google's Cache to this story ..

[weston]

If half of the story told there is true, it could easily be in Katy's best interest to let it be told. For one thing, it works as a cautionary tale about letting your guard down and hooking up with the first total bastard with a law degree and some charm who crosses your path, so it could really help her platform. For another one, if she does finally go postal and put a few rounds in him, it'll be hard to blame her.

Yeah, she sure had her vacant and stupid moments in that story, and sure, Tucker Max has that good ol' livin'-a-james-bond-flick appeal, but you know, none of that makes it all right to treat someone like that in real life. I wonder if this guy practices law the way he hooks up with women.

Re:Unreal ....

[sessamoid]

The problem (as I understand it) is that he published her name, and assiciated it with her house. That information is not published publicly, and she feels that this violated her rights.

Land deeds are public information, even in Malibu, California. The LA County Office of the Assessor has these documents for public perusal upon the asking.

From their website:

Q: HOW DO I FIND OUT THE NAME OF THE OWNER OF A PARTICULAR PROPERTY?

A: The Office of Assessor maintains the property assessment roll, which lists the assessee (normally the property owner). The roll may be inspected by the public at the main office or regional offices. For a list of the offices, go to the Assessor's website at: http://www.lacountyassessor.com/contactUs/contactI nfo.asp. You may also request this information by phone at (213) 974-3211 or by e-mail at assessor@co.la.ca.us

Re:If only...

[Mahrin Skel]

Judge Lewis' order would be more disturbing if it wasn't totally self defeating. How many hundreds of thousands of people have checked out that Google cache by now? An ad in the New York Times couldn't have done a better job.

He's a jerk, and she's a flake. She's obviously in desperate need of a personality transplant, and had the misfortune of having her first intense relationship with a complete asshole. I've met the type, the very pretty girl that has always been made so aware of it she doesn't know who she is beyond her looks. At this rate, she's not going to find out.

--Dave

Re:Zing!

[Joey7F]

That is a bunch of shit and you know it. So some how he would only be appalled enough to leave the USA if the margin in Florida (which time and time again fell in Bush's favor) was bigger?

You know that he meant "If Bush becomes president..."

Just take it for what it was; a stupid celebrity, has flair for the dramatic, blowing off a lot of hot air. He never gave that thought any consideration, he was just saying words. They live in a different universe than the rest of us.

--Joey

Re:Tucker Max galore

[rycamor]

Maybe I'm an old-fashioned kind of guy, but I don't know what's scarier: the implications of this lawsuit to free speech, or the fact that this narcissistic blowhard of a guy is now being celebrated by wanna-be's all over slashdot.

The humor is definitely Beavis & Butthead quality, IMHO.

Re:Google's Cache to this story ..

[gizmonic]

Don't post that link here! The next thing we know, Miss Vermont will be suing Google and Slashdot!

I'd mod that funny, if I weren't afraid it might come true.

Ken Adelman also has a point

[kimgh]

If you walk down a public street with a camera, you can take pictures of any house you like without anyone seriously able to challenge your right to do so. If you are in a public place you can take all the pix you want.

The airspace over all our houses is a public place, controlled by the FAA. There have been numerous challenges to this in this country, but generally it's been held that only the Federal Gov't has the jurisdiction to control the airspace. Taking aerial photos is therefore similar to taking photos from the street, in that both are public places.

Adelman has taken these photos of the entire California coastline, even getting permission from the military to photograph the parts controlled by them. He has had several complaints from rich people who object to pix of their houses on the web, but he makes no exception for any of them. He has not singled out Streisand or anyone else, and he is not selling pix of her house for personal profit. The proceeds of sales go, as I understand it, to fund environmental preservation. He is legally allowed to fly in the airspace he was occupying at the time. Finally, hi-res satellite photos of the Streisand compound can no doubt be purchased from a for-profit organization, and presumably these have been available for years with no complaint from Ms. Streisand. So I think her case is pretty weak.

Interestingly, I had no idea that Streisand owned a home on the coast, and even though I knew about the California Coastline project, never would have had much interest in looking at her home. But the news of this lawsuit changed that; I simply had to go look. Adelman made it easy by putting a link to it right on the home page. I'm sure that many people who didn't know about the project at all, or at least didn't care particularly, are now fully informed about it. If privacy is what Streisand is after, she has chosen a funny way to get it. Even if a judge orders the removal of the picture from the website, copies of it will no doubt remain available all over the web. Even if the project is shut down as a result of this suit, and all the pix disappear from the web, the picture of her house will be famous, and will persist as long as there is a web and interest in Streisand.

Re:Google's Cache to this story ..

[errxn]

No kidding! As far as I'm concerned, he is a far more disgusting person than she will ever be. So what, she's vain and confused; other than that, she's pretty much harmless. On the other hand, do we really need yet another overly self-impressed jerkoff with a loud mouth and a law degree in this world?

Umm, I'll go with the dumb blonde, thanks.

Far More Important Life Lesson

[NoData]

I urge all Slashdotters to read the Google cache of this story. Wow. It's unbelievably crass, misogynistic, and utterly puerile.

It's also the stuff of life you're completely missing out on sitting at home playing Counter-Strike and Evercrack.

Seriously, Tucker is a ridiculous caricature of the antithesis of geekdom (which is not to see he's not a really bright guy). But use his extremism to find the golden mean: Especially you younger Slashdotters, go out and make some MEMORIES. Do something STUPID. Take some (respectful) CHANCES with women.

Tangents:
The shocking of hilarity of Tucker's story is that it has the ring of truth...Even Katy accuses him of "invading privacy" by conveying "accurate details" of her life.

On the other hand, the shocking hilarity of Katy's site is its utter vapidity that resonates with Tucker's assessment. Her cartoons...wow...I mean, I could draw better cartoons and I'm so bad at drawing I'd be ashamed to show them to my own mother. And the humor(?!). Wow.

Check out these tortured puns:
Make it your philosophy not to be Gossipy! GOSSIP -> G(R)OSS(L)IP. Get it? Gross Lip! Ha. Ha?
It's unfair that most comics are drawn by men. It's time for DISS*"WOMAN"ATION to end! Please kill me.

The groaners keep coming. It's amazing. I mean staggering.

Don't feed this guy's page counter

[The Tyro]

C'mon... isn't this a little too escapist-fantasyish, even for slashdot? I know every geek dreams of hitting it off with a Ms.(insert state of choice here), but isn't living it through the eyes of her lawyer Ex-BF a bit much? Talk about living vicariously through others...

So her intelligence is not Ph.D-in-number-theory Slashdot elite... that's really no excuse for her class-deficient Ex-BF to write a kiss-and-tell website about their entire relationship. Frankly, I'd say it's pretty weak. I understand wanting to do it; everyone's lived in bimbo limbo at some time in their life. Everyone who's ever had a bad breakup, whether they saw it coming or not, has wanted to do the same thing; it's actually doing it that's over the line. Be an adult and walk away, thankful that the other person is out of your space.

There's something to be said for being the bigger man about these things. Let it go... such people tend to get what's coming to them anyway; all it takes is time.

Re:"Miss Vermont" didn't think this one through...

[maxpublic]

And we also know that 'Tucker Max' is an arrogant, mysogynistic little boy whose mama shoud've bitch-slapped him more when he was growing up. Scum like this little turd makes me think that forced castration for assholes is the only way to clean up the human gene pool....

Max

Great God Almighty!

[TygerFish]

Of the two people in the man story, Johnson is by far the more scary. In fact both of them are *way* scary followed by the judge in the case who is scary AND ignorant.

Tucker is a creep. The man is an IQ-test for women living in a modern, pluralistic society where women are free to choose sexual partners. In any place like the United States or Western Europe where women can choose one, many, or no sexual partners, women learn to avoid the Tuckers of the world, usually in high school, or they fail to and it isn't anyone's business.

The fact that Johnson hadn't learned it and didn't avoid Tucker is telling with respect to her... a cautionary tale about classic prudery and its abstinence-as-ignorance-as-virtue attitude. In the real world, Johnson got off lucky in that She could have gotten more than just a Tucker: she could have gotten a Tucker with a disease.

The judge in the case is a horror who in a better world would wake up covered in a sweat of realization and retire from the bench after reversing herself .

Yes, Tucker's portrayal of Johnson is painful to Johnson. Tucker is an egotistical turd, a man an earlier age would have called a cad, but the judge's decision sacrifices Tucker's right to free speech -- and by precedent, anyone's who comes before a court in a similar case -- in order to protect Johnson's right to hypocrisy; essentially, her right to foist on young women a standard of behavior that she herself obviously coudln't live up to and that was just as obviously harmful to her.

Johnson couldn't keep her legs closed when a Tucker rolled around, and she is selling the same set of attitudes that made her situation possible to impressionable young women; basically setting them up with the same sexual ignorance and social naivete that lead to her experience. Tucker's rebuttal, as nasty as it might be, would have provided a counterbalance to Johnson's B.S. and denial, working exactly as our free-speech provision is supposed to, and the judge shot that down. Honestly, that judge shouldn't be a judge anymore.

I can't stand the Tuckers of the world but I can only hope he appeals and wins.

Re:Google's Cache to this story ..

[TopShelf]

Wow, this guy really needs to get a life - this reads like a Dear Penthouse letter or something. For a lawyer, he has no tact....