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.

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

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.

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

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: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.

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.