Tabloid Law

A report from the chaotic fringes of the First Amendment, where publicity collides with privacy and the check-out line leads to the courtroom

(The online version of this article appears in two parts. Click here to go to part two.)

TABLOID LAWYER CORNERED IN CHURCH!

IFIRST learned about the tabloid wars during the after-service coffee hour at my church, in Auburndale, Massachusetts. An older couple were introducing their son, Jay Lavely, to the congregation. Lavely is a lawyer in Los Angeles. Like most of the L.A. lawyers I would later meet, he looks a decade younger than his age, which is fifty-five. Whether they are well preserved or re-engineered I have no idea.


As we chatted, Lavely told me what kind of law he practices. He represents celebrity clients in lawsuits against the supermarket tabloids. He and his partner, Martin Singer, have represented Arnold Schwarzenegger, Tom Selleck, Brad Pitt, and many other stars. We briefly discussed an article I had read in the tabloid Globe, which claimed that Schwarzenegger's heart-valve surgery had rendered him unfit for action-hero roles. I thought the article was silly, but Lavely took it quite seriously. His partner had already filed a $50 million libel suit against the paper.

Upon further acquaintance I learned that Lavely and his handful of colleagues in the anti-tabloid bar despise the excesses of the three mass-circulation weeklies -- the National Enquirer,the Globe, and the Star. To those on the receiving end, the excesses are quite real. The tabs routinely print confidential medical information about celebrities, or compromising, invasive photos of them. The reporters harass, bribe, and eavesdrop in their pursuit of tab-worthy stories. I suppose it's a character failing, but I like the tabs. For one thing, they have a puckish sense of mischief, borrowed from London's Fleet Street, which is sorely lacking in America's self-important mainstream newspapers. In surveys hardly anyone admits to buying the tabs. "I glance at them in the check-out line" is the stock response. But somebody must be buying them; five million copies are sold each week.

I occasionally buy them. I enjoy a half hour at the kitchen table savoring their outlandish tales ("TINY POOCH FIGHTS OFF KNIFE-WIELDING MANIAC TO SAVE TEEN"), oddball investigations ("GOVT. PLANS TO WASTE $15 MILLION KILLING 800,000 HELPLESS ANIMALS"), and offbeat features ("SWIMSUITS MAKE WOMEN STUPID"). I've kept half an eye on the evolving Elizabeth Taylor-Larry Fortensky soap opera, and I'm not too proud to ogle some leafy telephoto pix of Brad (Pitt) and Jennifer (Aniston) cavorting in their Caribbean hideaway -- before I read Richard Holbrooke's latest fascinating op-ed piece on Kosovo, that is.

So, listening to Lavely's tales of suing, shoving retractions down the tabloid editors' throats, and scoring big-dollar judgments against the weeklies, I said to myself, Why would anyone want to do that?

CAROL BURNETT TABLOID SHOCKER!

ONE answer to that question is, Because it is possible.

The modern era of tabloid litigation began on a spring morning in 1976, when Barry Langberg, a thirty-three-year-old entertainment lawyer, accepted a phone call from the comedienne Carol Burnett.

"She called me up from New York, and she was in tears about this article that had come out in the National Enquirer," says Langberg, an intelligent, courteous whippet of a man whom his most ferocious opponent calls "the patron saint of the tabloid bar." Langberg, too, seems to have been dipped in southern California's fountain of youth. Like every plaintiff's lawyer I interviewed, he is a relaxed but stylish dresser and enjoys a well-appointed office with a magnificent view of the dusky L.A. skyline. Twenty-odd years of suing the deep-pocketed tabloids has made many a comfortable career in the City of Angels.

Burnett explained herself: In a gossip-column item the Enquirer had reported that "a boisterous Carol Burnett had a loud argument with another diner, Henry Kissinger," at the Washington, D.C., restaurant La Rive Gauche. Then Burnett "traipsed around the place offering everyone a bite of her dessert." The tab recounted another altercation with a different diner, strongly implying that Burnett was drunk.

"She was truly hurt by the article," Langberg told me in his office. "Her parents were alcoholics; she had done a lot of high-profile anti-alcohol campaigns. She wasn't thin-skinned, but this article had a huge impact on her. At the time, there were tremendous obstacles to this kind of suit. [the landmark Supreme Court ruling that granted the media extraordinary license when covering 'public figures'] was only twelve years old. There was a feeling that if you were a star, you had to take that kind of abuse -- that it came with the territory. And the Enquirer had a pretty good record of getting out of trouble. I told Carol what the pattern was -- that the Enquirer would make a lawsuit hard, long, drawn-out, and very expensive. And she answered, 'I've got the time, the patience, the resources, and the desire to do it.'"

Burnett proved to be the tabloid's worst nightmare: a determined, wealthy, principled plaintiff. She rejected settlement offers. The Enquirer published a retraction. She didn't care; she wanted to go to trial. When the case finally came before a Los Angeles jury, in 1981, she was as poised and charming on the witness stand as she had been in countless television specials. Sadly for the Enquirer's (subsequently dumped) law firm, Rogers & Wells, the case had a plethora of "bad facts." In a deposition a Florida-based editor of the Enquirer said that he distrusted the source of the original report and had rewritten the item himself. A reporter testified that he had tried to fact-check the item one hour before deadline and failed. Two of the restaurant's employees came forward and said they had told Enquirer reporters that Burnett hadn't been drunk at all.

Burnett won $1.6 million in damages. In 1986, after a series of appeals reduced the award, she and Langberg settled with the Enquirer, reportedly for $200,000. Burnett donated a portion of her award to the journalism programs at the University of California at Berkeley and the University of Hawaii.

On the heels of her suit three dozen celebrities, including Rory Calhoun, Paul Lynde, Rudy Vallee, and Phil Silvers, filed look-alike suits against the Enquirer. "The Enquirer had thirty cases filed against them by people whose names are a fading memory on Hollywood Squares," says Langberg's longtime nemesis, Gerson Zweifach, now the Enquirer's chief litigator. "After Barry rang the bell, it sent the message 'Bring 'em on!' It changed the entire landscape." The era of tabloid litigation -- the extreme sport of First Amendment law -- was born.

Tabloid litigation has taken us places the Framers never dreamed we would go. Describing Burnett v. Enquirer in his First Amendment history, Make No Law (1991), a puzzled Anthony Lewis asked, "Why should inaccurate gossip about [movie stars'] private lives deserve an especially high standard of First Amendment protection?" First Amendment lawyers speak knowingly of "the Kato law," referring to a California court's finding that O. J. Simpson's former houseboy was defamed by the tabloid headline "COPS THINK KATO DID IT!" At the beginning of his eleven-page opinion in the most recent Eastwood v. Enquirer case, Judge Alex Kozinski allowed himself this moment of levity: "Did defendant falsely represent that plaintiff had given it an interview? ... Enquiring judges want to know."

"CREEPING TABLOIDISM!" LAWYER CLAIMS

WHEN you say "supermarket tabloid," most Americans still think of headlines like "JFK AIRLIFTED TO MARS" and "NEW JERSEY BABY BORN WITH THREE HEADS," evergreen fodder for papers like the Weekly World News and The Sun. But when Vanity Fair calls the 1990s the "tabloid decade," it is paying homage to the three "fact-based" tabs, the Enquirer, the Globe, and the Star. (The Enquirer and the Star are owned by the same company.) These newspapers all have large staffs of reporters and editors, some of them drafted from Fleet Street, who gather information and print stories more or less the way other journalists do.

Sure, the tabs do things a bit differently. They pay tipsters, and in some cases they cross the line into entrapment. FBI agents briefly investigated whether Suzen Johnson violated prostitution statutes when she lured the veteran broadcaster Frank Gifford into a hotel room on behalf of the Globe, which paid her $125,000 for her time, as it were. In addition to bribing personnel such as maids and hairdressers to the stars, the tabs use paparazzi with rifle-barrel lenses to stalk and shoot celebrities in their sancta sanctorum.

The tabloids say they have a heavy investment in accuracy. Michael Kahane, the general counsel for the Globe, explains that Globe reporters compile extensive story files, consisting of notes, audio and video tapes, and documents, including "source agreements," for every article. "Colleagues of mine say they wish their daily newspapers would use the same thoroughness that we do," Kahane says. "Obviously, we're approaching this from a different level of contention, because for us every story represents a potential lawsuit." Lawsuits, of course, are expensive. A voir dire -to-verdict litigation costs more than $1 million in lawyers' fees. Damage awards are rare, but they can be big. The Globe, for instance, has been ordered to pay $1.2 million to Khalid Khawar, a Pakistani freelance photographer. In an article summarizing a book, the tabloid erroneously accused Khawar of assassinating Robert Kennedy.

To forestall such snafus, the Globe has several in-house lawyers available to vet copy before publication. Kahane claims that the Globe, alone among the major tabs, regularly gives some of its sources (including Suzen Johnson) lie-detector tests. The Los Angeles lawyer Amy Hogue, who works with Kahane, says that Globe reporters routinely make telephone or fax "comment calls" to the subjects of controversial articles twenty-four hours before deadline. For his part Lavely remembers more hurried morning calls than twenty-four hour notices:"Many times they'll call and say 'We're going to press at noon.'"

The Enquirer employs an eight-person research department to help with fact-checking. The Washington, D.C., law firm of Williams & Connolly handles its prepublication legal review. (The Enquirer's parent company, American Media, spent approximately $20.8 million on libel-related costs, including insurance, legal fees, and settlements, over the past five years.) President Bill Clinton's lawyer David Kendall, a Williams & Connolly partner, is famous at the tab for green-lighting one of its most controversial stories, "LIBERACE'S SECRET BATTLE WITH AIDS." The elaborate review system notwithstanding, Langberg says, "Sometimes they make stuff up." Indeed, Kendall also handled the prepublication review of the piece that led to Clint Eastwood's most recent suit, which revealed that -- unbeknownst to Kendall -- the Enquirer had bought and printed a fictitious interview with the movie star.

But the tabs also get stuff right. Early in the O. J. Simpson case the New York Times reporter David Margolick acknowledged that the Enquirer had "broken numerous stories" relating to Nicole Simpson's murder. For instance, the tabloid was the first to report Simpson's purchase of a fifteen-inch stiletto. By dint of a Herculean search through photographers' archives, the Enquirer found and printed a photograph of Simpson wearing oversize Bruno Magli shoes like the ones that left footprints at the murder scene -- shoes that Simpson had denied ever owning.

The tabs' circulation has been declining during the tabloid decade, supposedly because the mainstream press is becoming trashier -- that is, more like the tabs. "Creeping tabloidism," Langberg calls it. Part of me thinks this is rubbish. On the other hand, as I wandered around Los Angeles interviewing lawyers, it was hard not to notice Monica Lewinsky's picture on the front page of the Los Angeles Times every day. (The Barbara Walters interview was about to air, and the Andrew Morton book followed shortly thereafter.) A few weeks before, the New York Times had printed a front-page story on Lewinsky's state of mind, attributed to "a friend" -- the classic tabloid formula.

WANT TO SUE A TABLOID? MAKE MY DAY!

-- American Media, 1998 Annual Report

TWO decades after Carol Burnett's victory, it's still hard to win a judgment against a tabloid. The First Amendment is a steep grade for any plaintiff's lawyer to climb. And as he or she struggles uphill, look who's rolling boulders down. Take Gerson Zweifach, a trim, dark-haired forty-six-year-old First Amendment litigator at Williams & Connolly. Zweifach emerged from Yale Law School just as Williams & Connolly landed the National Enquirer account, and he cut his teeth on the post-Burnett lawsuits. "Some of these cases were tremendously entertaining," Zweifach recalls. "I had to defend the paper against a 'Hollywood personality' named Henry Wynberg. The Enquirer said he had exploited Elizabeth Taylor. I learned that Henry had been charged in L.A. for giving Quaaludes to girls at Beverly Hills High School, and he had rolled back odometers. We went into court and said he had no reputation to lose, that he was libel-proof. That was a relatively novel argument at the time."

Zweifach seems to have been cast in the classic Williams & Connolly mold: he is smart, sardonic, and pugnacious. We had a conversation about Khalid Khawar's case against the Globe, which had overlaid a thick arrow on a group photo in an effort to identify (wrongly) Khawar as Robert Kennedy's killer. Speaking of Khawar's dogged pursuit of his claim, Zweifach said, deadpan, "Some people just don't have a sense of humor." During a lengthy interview in his Washington office he fussed and fidgeted, and confessed to the litigator's love of combat: "I like to be in court." He praised Barry Langberg with words similar to those that Margaret Thatcher used to praise Mikhail Gorbachev: "I can do business with Barry. At heart he's a trial lawyer. I'm a trial lawyer. We like to try cases."

Earlier in his career Zweifach worked on the "review group" -- a rotating coterie of Williams & Connolly lawyers who fly down to the Enquirer's Florida headquarters to read the newspaper each week before publication. Zweifach hated it. "It was like being a cornerback in football. The only time anyone remembered your name was when you got burned on an eighty-yard pass. I'd rather come into a situation where the only place we have to go is uphill."

Zweifach's wish has been granted. Several years ago he litigated, and lost, the Eastwood case, which was uphill from the get-go. Clint Eastwood, the plaintiff, hated the Enquirer, and had settled a lawsuit against it ten years before. And like Burnett, was chock-full of "bad facts" for the Enquirer.

On its cover the paper had trumpeted a lengthy "exclusive interview" with Eastwood. Unfortunately, the interview never took place. The paper also claimed "exclusive" access to a photo of Eastwood's new baby, born to his former girlfriend, Frances Fisher. But the jury learned that a photographer had taken a picture of a baby photo from a distance when Fisher handed the snapshot to the actor Daniel Baldwin at a movie premiere. "If she didn't want the world to see a photograph of her daughter, she shouldn't have held it up," Zweifach grouses. "She's there to pump a movie; the photographers are there to take her picture." But even he allows that this particular intrusion overreached. "Eastwood used the photo very effectively at trial. In front of a jury you don't want to be making a legally correct, unappetizing argument about why you printed someone's baby photo without their permission." Fictional interview, purloined photo: the judge and jury awarded Eastwood $800,000.

But a case with even worse facts for the Enquirer ended differently. In 1993 Elizabeth Taylor, who had also successfully sued the weekly before, filed a lawsuit concerning a cover story that was ridiculously inaccurate. This time the Enquirer's reporter was following up on a court filing by one of Taylor's neighbors, who claimed that Taylor's husband at the time, Larry Fortensky, had picked a fight over a shared fence. The reporter went to what he thought was the neighbor's house, opened his checkbook, and the Enquirer ultimately printed the resulting scoop on its cover: "LIZ & LARRY FORCE NEIGHBOR TO FLEE HIS HOME IN FEAR." But the reporter had interviewed the wrong neighbor. "This guy saw an opportunity," Zweifach says. "He took the money and he told this harrowing tale. They put his picture on the cover. It was a deeply flawed piece." It's hard not to laugh at a goof-up like this, and even Zweifach cracks a smile when recounting the tale. "Look," he says, "libel law isn't journalism finishing school."

Remember Times v. Sullivan ? A false report does not guarantee a libel judgment. As a public figure, Taylor would have to prove that the Enquirer had acted with actual malice, and had damaged her reputation. Zweifach says, "The judge ruled that the effect of our report was no different than if we had reported the court filing. He threw out the case." Taylor had sued the Enquirer for libel, and for "commercial misappropriation" of her name and celebrity. But California has an automatic fee-shifting claim in this kind of case, so the judge ordered Taylor to pay the tabloid $432,600 in legal fees. "We tried to end the case, and she pushed it through two appeals," Zweifach says. "She kept losing, and we kept winning."

The victory presented a quandary for the Enquirer. The tabloid hadn't wanted to further anger Taylor, an audience favorite who appears -- against her will, no doubt -- in its pages about every other week. So after the final appeal the Enquirer staged a party at the Four Seasons Hotel in Palm Beach, where the editor, Steve Coz, announced that a portion of the award would be donated to the fight against AIDS, one of Taylor's favorite causes. A color photo of the check, "suitable for framing," Zweifach says, sits in his Williams & Connolly office.

(The online version of this article appears in two parts. Click here to go to part one.)
CELEBS' LAW DIFFERENT FROM YOURS AND MINE!

LIBEL and defamation law is heavily stacked in the tabloids' favor. The same First Amendment invoked by Williams & Connolly to allow The Washington Post to publish the Pentagon Papers grants the tabloids enormous leeway in examining celebrities' lives. It's tough being a public figure, as a recently minted celebrity like Kato Kaelin can attest. Kaelin tried to sue the Globe for reporting that he had "confessed" to a friend that he helped O. J. Simpson to dispose of bloody clothing on the night of the attack on Nicole Simpson. A judge tossed the suit out of court. Kaelin's lawyer, Gary Bostwick, dolefully observed in the Los Angeles Times that his client was "a little guy who became a public figure overnight because he heard some thumping in the middle of the night."


Illustration by Robert Grossman

Still, celebrity plaintiffs enjoy obvious advantages. The Globe lawyer Amy Hogue surprised me with her claim that she and her colleagues have "two strikes" against them when they walk into court. "People like judges, who don't read and enjoy the Globe, have an idea that its content is prurient, not true, and overly sensationalized," she explains. "It's harder to persuasively take the high ground when you're representing a tabloid." Furthermore, Los Angeles is home turf for the celebrity plaintiffs. "Even in L.A. jurors are very excited to be in the courtroom with a celebrity, very willing to believe a celebrity, and willing to reward a celebrity for perceived wrongs," Hogue says. She is famous in the California bar for a delicate 1994 cross-examination of the Wheel of Fortune letter-turner and celebrity survivor Vanna White. In a series of friendly questions Hogue had White tell the jury about two Playboy photo spreads and her visits to the Playboy mansion. "We had to be very careful, because at the time she had this image as the girl next door," Hogue recalls. She lost the case.

Dissatisfied with the flimsy protection afforded their clients by traditional libel law, plaintiffs' attorneys like Langberg, Bostwick, and Lavely have devised creative new assaults on the tabloids. "For years the plaintiffs' bar has been looking to load up against our client," Zweifach says. In the suit concerning Elizabeth Taylor's neighbor, for instance, Taylor's lawyer included a "civil RICO" claim against the Enquirer, accusing it of mail fraud under the Racketeer-Influenced and Corrupt Organizations Act. Still, tab lawyers routinely shift cases from state to federal courts, where, they believe, judges are less indulgent of outlandish legal appeals. (The added paperwork in federal courts also imposes a heavier burden on plaintiffs' lawyers, who are often working for a contingency fee.) In the Taylor case a federal judge quickly dismissed the RICO claim.

Zweifach believes that plaintiffs like to file "California boutique torts" other than libel and defamation in order to avoid the process of pre-trial discovery. It might not be wise for a star depicted as being drunk on a movie set to pursue a libel claim that would have the tabloid's lawyers digging into his or her history of substance abuse. As noted, a famous enough star can pursue a claim of commercial misappropriation, complaining that the tabloid used the celebrity's image without permission to sell newspapers. This gambit worked twice for Clint Eastwood, in 1982 and in the interview-and-baby-picture case, which was finally decided in 1997. In the more recent case Eastwood won on all three of his counts -- misappropriation, invasion of privacy, and an obscure claim under the federal Lanham Act, a consumer-protection statute aimed at penalizing companies that make false claims for their products. Eastwood's lawyers skirted the libel laws entirely, admitting at trial that the offending interview was not defamatory. Their only gripe was that it had never taken place.

More recently, celebrities have sought refuge in contract law. Michael Jackson makes members of his entourage sign nondisclosure agreements. If one blabs to the tabs, as someone inevitably does, Jackson's lawyers can file an interference-with-contract claim. This has taken on absurd proportions: some celebrities have asked wedding guests to sign nondisclosure contracts as a condition of attending a ceremony that might attract the interest of the tabs. "That's so tasteful," Zweifach scoffs. "You open up the Tiffany invitation and this contract falls out of the envelope."

Moreover, celebrities' lawyers have been scoring some victories in the burgeoning field of privacy law, which has not been well defined by the courts. Judges and juries are now sympathetic to claims that seek to protect "private facts." For instance, Gary Bostwick successfully argued that the Enquirer should pay damages to Tamara Hood, the former girlfriend of the comedian Eddie Murphy, because it had told too much about her private life. A state appeals court acknowledged that Murphy was a public figure, and that his actions were "generally newsworthy." But when the Enquirer printed precise details of Murphy's financial settlement with Hood and their son, Christian (he had bought her a house and set up a trust fund for the boy), the court held that it had overstepped: "We cannot say as a matter of law that the details of a celebrity's financial support of his child and Ms. Hood's are newsworthy." The truthfulness of the report, which just a few years ago constituted an absolute defense, played little role in the court's decision. Bostwick says, "Because of the new use of these privacy torts, judges are ruling that the publication of truth cannot be sanctioned under all circumstances."

Another category of privacy law -- trespass -- has provided new opportunities for celebrity litigation, especially since the death of Princess Diana. In California celebrities have even succeeded in passing their own statute, outlawing so-called "constructive trespass" ("voodoo trespass," one of the defense lawyers calls it) by news reporters. The 1998 law allows for treble damages on journalists who intrude on "personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy . . . regardless of whether there is a physical trespass." Theoretically, this would put an end to helicopters hovering over Barbra Streisand's wedding, and to those snapshots I saw of Brad Pitt and Jennifer Aniston canoodling in the palms. ("Really? Where?" a concerned Lavely asked me over lunch near his Century City office. "They're both clients of mine.")

It could have been worse. Schwarzenegger, Steven Seagal, and other stars initially lobbied state legislators for a fifteen-foot "bubble," or traveling restraining order, that would keep reporters and photographers two car-lengths away from celebrities. But Lavely is happy with what they got. "Aggressive paparazzi behavior can lead to dangerous circumstances,"he says. "Think about it -- celebrities are high-risk people in terms of stalking fans. Most of my celebrity clients have one or more stalkers or pursuers." Zweifach's position on "intrusive" photography is that bad behavior begets embarrassing pictures. "Let's say we get pictures of Bruce [Willis] and Demi [Moore] dancing on the bar at Planet Hollywood with their clothes off, and not necessarily with each other -- this isn't the Mossad taking these photos!" The constructive-trespass law, which was opposed by the American Civil Liberties Union and by every major news organization in California, has yet to be tested in court.

But as the plaintiffs' lawyers stray from the familiar ground of libel and defamation law, they learn that new causes of action create new problems. Kato Kaelin's libel claim against the Globe, for instance, exposed him to an anti-SLAPP ("strategic lawsuits against public participation") motion. This exotic procedure has flourished in California, counteracting real-estate developers and oil companies that have used SLAPP suits to silence neighborhood groups or public-interest lobbies opposing their projects. A SLAPP suit essentially levels a defamation claim at the critic of a controversial project. The San Francisco Chronicle won a precedent-setting anti-SLAPP motion against a bothersome litigant in 1995, and the Globe did the same with Kato Kaelin. The judge accepted the Globe's claim that Kaelin had filed a frivolous lawsuit, and slapped him with the Globe's $25,000 legal bill. "I can't win anything," Kaelin complained to the Los Angeles Times. "I can't understand a law where I'm paying this company's lawyers while they're writing libelous stories about me."

GOT A PROBLEM? MAYBE WE CAN SETTLE THIS...

LIKE most civil actions, the majority of tabloid lawsuits never come to trial. Often the celebrity's lawyers will file a claim, fire off a press release, and then quietly back off the suit. (One B-list actress issued a press release and then neglected to file suit against the Enquirer. When editor Steve Coz phoned her publicist, he learned that the star planned to make her filing coincide with an upcoming movie-of-the-week appearance.) Many of these suits are dismissed on summary judgment. But where the plaintiffs have a legitimate claim, the tabloids are amenable to extrajudicial settlements, which can be interesting indeed.

The first level of mediation involves a retraction, which will satisfy many aggrieved celebs. Retractions are hard to obtain. "The chances of getting a retraction from any publication are about one in a hundred," Bostwick says. Bostwick has had bad experiences negotiating retractions with the tabs. "The retraction can even be more damaging, because they'll print the truth as they know it. For instance, they'll say, ' We erroneously reported that so-and-so was arrested for driving while intoxicated. In fact she was arrested for possession of drugs.' And then another few million issues will go to press repeating the damaging information. Or they'll repeat the allegation with some snide comment. You have to be careful."

In Langberg's office I saw a tongue-in-cheek draft retraction that the Enquirer wanted to print after inaccurately reporting that the magician David Copperfield "conjured up a pack of trouble when he offered to do a magic trick for a busty model at a party in Milan -- and stuck his hand down her cleavage!" In a blithe note to readers, the editors suggested that they would like to make their mistake "disappear." Langberg frowns on this kind of high jinks; he held out for a straightforward admission of error.

Retractions can cut both ways. In 1997 the Enquirer forced Eddie Murphy to drop a $5 million libel claim, reimburse its costs, and issue his own retraction: "After an investigation of the matter, Mr. Murphy has concluded that the National Enquirer did not publish its article about Mr. Murphy with malice or recklessly."

Another Solomonic resolution is the "give-back," or "make-up," story, a follow-up article that corrects some earlier mistakes. Such resolutions are also full of pitfalls for angry celebs. "The tabs always want to use the settlement agreement to get another story, having the client's participation," Langberg complains. Still, it's something. A classic give-back ran in the National Enquirer two years ago, headlined "SORRY, MATT PERRY." The paper had erroneously reported that the star of the TV sitcom Friends had checked into a rehabilitation hospital for a drug problem. Although Perry had previous well-documented problems with substance abuse, he happened to be at the hospital ministering to his sick grandfather. "It was a horrible mistake," Coz concedes. The give-back ran in the same space as the mistaken report, with the same headline size. No litigation ensued. Coz says, "It's a great example of how fair the National Enquirer can be."

The great unmentionable in tabloid warfare is the "blackout." Very rarely, when threatened with significant legal repercussions, a tabloid will agree not to write about a certain celebrity for a while. According to Los Angeles magazine, lawyers for the comedienne Roseanne Barr obtained a lengthy blackout agreement from the Enquirer and the Star as part of a settlement following charges that reporters stole intimate letters from her. Lavely and Langberg say they have each obtained a blackout but won't discuss the clients involved. "They hate to give those," Langberg says. Kahane says the Globe agreed to a couple of blackouts before he arrived, in 1995, but it doesn't give them now. On the legal and ethical front a blackout amounts to prior restraint -- the untouchable third rail of First Amendment jurisprudence. Bostwick, who is also a professor of First Amendment law at Loyola Law School, says he has never heard of a blackout agreement and would never seek one: "Asking for a blackout is contrary to my views."

Sometimes out-of-court settlements have a winsome aspect. The actress Melissa Gilbert sued the Enquirer over a story that portrayed her as a "deadbeat Mom" who forced her children to watch reruns of her TV series, Little House on the Prairie. She dropped the suit, but as part of the settlement Gilbert asked for and received a meeting with Steve Coz. ("That's rare," Lavely remarks, "because most people would like to wring his neck.") "She flew down here, and we had drinks and dinner at the Delano Hotel, on South Beach," Coz told me. "We had a terrific time. I think we have a budding friendship."

TABLOID ARMAGEDDON!

IF there is one thing the tabloids fear, it is the Godzilla plaintiff -- the wealthy, aggrieved celebrity who just keeps on coming. Carol Burnett was one: a celebrity of unimpeachable reputation, rich, willing to spend, animated by principle, and determined to punish her tabloid adversary. After being awarded $1.6 million Burnett proclaimed that she would have been happy to pursue the suit for "one dollar plus cab fare." Clint Eastwood was another such plaintiff. After researching Eastwood's behavior in a palimony suit filed by his former girlfriend Sondra Locke, Zweifach knew that Eastwood would be a tough nut. "Clint could have taken care of her, but instead he fought her, and she gave him years of bad publicity. He's a very stubborn man" -- $800,000 worth of stubborn where the Enquirer is concerned.


Illustration by Robert Grossman

Now the Twin Towers of tabloid litigation, Langberg and Zweifach, are squaring off again. Langberg has a Godzilla client -- the lifestyle diva Martha Stewart. "She has all the earmarks of the celebrity who will go to the ends of the earth to get a judgment against us," Zweifach says. "She looks like she will walk through fire. Here's a stunning fact: she sat in a Connecticut courtroom for several hours day after day in a battle with a gardener over a $20,000 bill. This could be a humdinger."

Two years ago the Enquirer printed a story headlined "MARTHA STEWART MENTALLY ILL." The Enquirer quoted two mental-health experts, a doctor and an author, opining that Stewart "shows indications of a neurological brain disorder." They arrived at their conclusions after reading excerpts from Jerry Oppenheimer's Just Desserts, an unauthorized biography of Stewart, which was serialized in the Enquirer. Stewart is understandably upset that an audience of two and a half million readers may think she is mentally ill, on the say-so of two purported experts who have never met her. One curiosity in the case is that the sources approached the Enquirer, not vice versa. "That's a good fact for us," Zweifach says.

Stewart's "claim for relief" is only three pages long -- what Zweifach calls a "clean, pure" Barry Langberg filing. "The ... statement and headline published in the Article are false and defamatory and expose STEWART to contempt, ridicule, and obloquy," the suit reads. The "defendants made the defamatory statements alleged above knowing that they were false, or with reckless disregard for truth." It's Libel 101. No RICO, no Lanham Act, no "commercial misappropriation" or "constructive trespass." In lapidary prose that would make his law-school professors proud, Langberg requests $10 million in general damages, with punitive damages to be awarded at trial.

Langberg is itching to go. "Martha's strong-willed; she has principles; they lied," he says. "We're going to go to trial, and we're going to win. I just hope Gerson doesn't make me an offer that's so good I have to advise Martha to take it." When I spoke with Zweifach in Washington, he was gleefully pawing through the Oppenheimer book, a running sewer of derogatory allegations about Stewart. He said he couldn't wait to get into the ring against Langberg and his mega-wealthy client. "Anyone running a business called ' Martha Stewart Living Omnimedia' is going to have millions of dollars to throw at this." I spoke with Zweifach again after the two lawyers had agreed to prolong the pre-trial discovery period. "We both agreed to extend it, since we're busy loading up with psychiatrists. Barry will have his psychiatrists, we'll have ours. Mazel tov! That's the First Amendment. That's what's great about America."


Alex Beam is a columnist for The Boston Globe and the author of two novels, (1987) and (1991).


Illustrations by Robert Grossman.

The Atlantic Monthly; August 1999; Tabloid Law - 99.08 (Part Two); Volume 284, No. 2; page 55-68.


Presented by

Why Principals Matter

Nadia Lopez didn't think anybody cared about her middle school. Then Humans of New York told her story to the Internet—and everything changed.

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register with Disqus.

Please note that The Atlantic's account system is separate from our commenting system. To log in or register with The Atlantic, use the Sign In button at the top of every page.

blog comments powered by Disqus

Video

A History of Contraception

In the 16th century, men used linen condoms laced shut with ribbons.

Video

'A Music That Has No End'

In Spain, a flamenco guitarist hustles to make a modest living.

Video

What Fifty Shades Left Out

A straightforward guide to BDSM
More back issues, Sept 1995 to present.

Just In