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Tabloid Law
Illustration by Robert Grossman


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

by Alex Beam

(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.

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Related links:

Libel Defense Resource Center
"The Libel Defense Resource Center is a non-profit information clearinghouse organized in 1980 by leading media groups to monitor and promote First Amendment rights in the libel, privacy, and related fields of law."

"The First Amendment and Freedom of the Press," by James C. Goodale (February, 1997)
"In the following article, Goodale [who served as general counsel to The New York Times in the Pentagon Papers case] describes several Supreme Court cases in which First Amendment rights have been upheld, allowing the press to pursue its mission, no matter how odious that mission might seem to those in power." Originally published in USIA Electronic Journal.

The California Anti-SLAPP Project
"The California Anti-SLAPP Project (CASP) is dedicated to helping protect and further the rights of Californians to participate in government and civic affairs and to speak freely about public issues. CASP assists the public and legal community in preventing and defending against SLAPPs (Strategic Lawsuits Against Public Participation)."

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. Times v. Sullivan [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!

"Because the focus of the Company's publications on personality journalism often involves controversial celebrities or subjects, the risk of libel litigation arises in the ordinary course of the Company's business."

-- 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, Eastwood 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.

Continued...

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


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

Illustration by Robert Grossman.

Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; August 1999; Tabloid Law - 99.08; Volume 284, No. 2; page 55-68.