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IBEL 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."
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."
IKE 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."
F 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.
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."
Illustrations by Robert Grossman.
Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.