by Robin D. Barnes. New York: Oxford University Press, 2010. 324pp. Cloth $55.00/£35.00. ISBN: 9780195302760.
Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu.
While celebrities the world over are subject to often intense, pervasive and intrusive media scrutiny, Professor Robin D. Barnes concentrates on the experiences and legal conflicts of celebrities in the United States and European Union against “an unrepentant press corps that continuously invades their private lives” (p.xv). Barnes promises to analyze legal doctrine from both the U.S. Supreme Court and “the High Courts of Europe” to show how and why American celebrities receive lesser protections than their European counterparts. In addition, Barnes seeks to identify “the universally recognized values that serve to distinguish public from private realms of authority, and the enduring commitments to the rules of civic engagement that tend to bolster democratic governance” (p.xvi).
Barnes explains in the Acknowledgements that the book began as “a scholarly paper” which, with the aid of an Oxford Press editor, moved to a concrete manuscript proposal. The heart of the scholarly paper probably was an account (chapter 8) of European efforts to balance the privacy needs of celebrities (usually deemed “public figures” in the American law of defamation) with the rights of the press. The remainder of the book consists of borderline-lurid accounts of celebrity escapades and their media coverage; sketches of the governing legal principles that are only slightly better than a good legal outlines publication; an account of the late Michael Jackson’s travails that borders on bathos; and a prose style that is sometimes murky, sometimes quirky, and replete with errors that would have or should have been caught by a good editor with some knowledge of American constitutional law, but might easily be ignored by an author racing to surround that scholarly kernel with as many pages as possible and an editor eager to get to market a book that allows us to leer at the private lives of celebrities while being lectured on their unfair treatment by a predatory media and a complicit American legal system.
Barnes begins with an examination of a 2004 decision by the European Court of Human Rights (ECtHR) in a case brought by Princess Caroline of Monaco. For nearly a decade the Princess was regularly the front page subject of a German magazine publisher. She sought an injunction against further publication of articles, photos (all taken in public) and accompanying headlines and captions (Barnes devotes two pages to listing the tawdry headlines and captions, never explaining inclusion of the incongruous “Lady Di is said to have authorized an estate agent to find a plot of land…Julio Iglesias is searching too.”) (p.5). The ECtHR, faced with the task of reconciling Article 8 of the [*695] European Human Rights Convention (insuring “the right of the individual to be left alone”) with Article 10, which protects free expression, ruled in Caroline’s favor based on a distinction between reporting on facts that contribute to public debate in a democratic society and reporting details of “the private life of someone who exercises no official function” (p.6).
Barnes decries the sparse American press coverage of the decision as indicative of American media’s disregard for personal privacy and individual autonomy, complains of the superficial coverage by USA Today (Barnes seems shocked, shocked to discover lightweight coverage in USA Today), and faults the New York Times’s trivialization of the constitutional issues involved by reporting that the case was about “the publication of five photographs.” (There were a total of 43 photographs in evidence. This reviewer could not find the phrase “the publication of five photographs” in the Times article cited in Barnes’s footnote.) Barnes summarizes the American media outlook by “[p]araphrasing the late U.S. Chief Justice Roger Tanney [sic]; public figures have no rights which the press are bound to respect” (p.8).
Chapter 2 presents varied examples of media invasions, stalking, harassment, blogs, tell-all talk shows, and assorted other intrusions on the lives of celebrities. “When business is slow, paparazzo [sic] create stories by provoking confrontations that force celebrities to defend themselves…” (p.28). Barnes claims that most celebrities live or work in New York or California, whose laws “offer virtually no protection for the rich and famous in public space.” Barnes quotes two dense paragraphs from “the California Paparazzi statute” to make the point (pp.23-4), but to this reviewer the quoted text suggests more meaningful protection against invasions of privacy. Unfortunately, analysis of the statute and relevant judicial constructions is absent.
Barnes also takes us on a brief excursion through “American social dysfunction” with examples from a variety of articles published over the years in PSYCHOLOGY TODAY. Barnes finds particularly egregious offenses in daytime talk shows that “exist to entertain the masses while exploiting the exhibitionism of the walking wounded” (p.36). Barnes’s observation that the “original role of the press is to inform the public of those matters that affect social, political, and economic change. Neutral reporting rather than celebrity stalking is the mandate under which freedom was granted to the press” (p.49) is about as plausible as some other originalist interpretations.
Barnes next surveys freedom of the press in American jurisprudence. “Among U.S. constitutional law scholars, there is substantial agreement that the First Amendment is indeed the holy ground upon which critical legal scholars must remove their shoes before stepping” (p.52). (Attention burgeoning First Amendment scholars: consider yourselves warned of both the intellectual and physical demands of the path upon which you have chosen to tread.) Barnes explains that with the passage of the 14th Amendment, key provisions of the Bill of Rights could be applied to the states. “The U.S. Supreme Court’s 1919 ruling in NEAR v. MINNESOTA was the first to invalidate [*696] a state law that targeted the press” (pp.54-55). The correct date of the case, 1931, appears in a footnote. Throughout the book footnotes and main text seem to dwell in parallel universes that only occasionally intersect.
Barnes explains that the “primary champion of the ideological free-for-all [i.e., “the marketplace of ideas”] was the late Justice Oliver Wendell Holmes, who declared: ‘[the] Constitution was made for people of fundamentally differing views and the accident of our finding certain opinions natural, familiar, novel or even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’ Therefore, the main goal is the freedom to search for the truth.” The footnote, correctly, cites LOCHNER v. NEW YORK. There is no trace of Holmes’s dissent in ABRAMS, generally considered the classic statement of his views on these matters.
Barnes’s discussion of freedom of association starts with NEW YORK TIMES CO. v. SULLIVAN, described in a footnote as a “per curiam” opinion “establishing constitutional protection for libel of public figures” (p.63). The main text, however, gets it right, then proceeds through the Pentagon Papers case and the Freedom of Information Act to a closing section on the decline of investigative journalism, which, when “focused upon government officials and powerful corporate actors is the closest we will ever get to the heart of what the guarantee [of a free press] was designed to protect” (p.71).
In a chapter on the fundamental nature of privacy, Barnes argues that privacy is crucial to the free development of the individual’s personality. “The need to formulate a coherent identity through autonomous development . . . is the substance of the respect and esteem we value in self-conscious beings. Scholars examine Abraham Maslow’s theory on the hierarchy of needs as being consistent with Jean Piaget’s cognitive development theory, but in contrast to Lev Vygotsky’s social constructivist approach and Lawrence Kohlberg’s planes of moral adequacy” (p.81). There had been an earlier reference to Maslow’s work; Piaget and Vygotsky and Kohlberg come out of the blue, with no citation, no explication of their ideas in contrast to Maslow’s, and no further appearances. Nor any citations to the scholars who examine Maslow’s theory. Nor any indication of which celebrities (apart perhaps from Britney Spears – cf. pp.37-8) have had their personalities stunted by the intrusions of the press.
In a section on “Equal Protection under the law,” Barnes observes that Princess Caroline’s dual citizenship means that in her capacity as a U.S. citizen she possesses fewer basic rights of privacy. “Under U.S. law, [Caroline’s] classification as a public figure would automatically remove the general protections enjoyed by average citizens. The additional steps of proving that the information published about her was false, and that the publisher knew that it was false or proceeded with reckless disregard as to validity, amount to an effective denial of celebrity privacy in stark violation of the constitutional mandate for equal protection under the law” (p.85).
Could this be the beginning of a significant constitutional argument? [*697] Barnes makes this point several times in the book: our current defamation law denies to celebrities considered “public figures” equal protection of the laws. One would expect some concise overview of current equal protection doctrine as well as an argument as to why celebrities categorized as “public figures” can claim a Fourteenth Amendment violation. Is the distinction between ordinary citizens and celebrities irrational? Is celebrity status a suspect classification? Is privacy in the sense of freedom from “a brood of photographers, cameramen, or other aspects of the industry that sponsors such excesses” (p.86) a fundamental right? No such arguments are to be found. Surely Barnes does not believe that any unequal treatment by government is a violation of the Equal Protection Clause.
Barnes next complains about “the sheer volume of articles that – in purporting to define what is really at stake when we talk about the loss of privacy – explicitly denigrate the value of individual autonomy and self-determination. Most of the critiques in legal academia focus exclusively upon informational privacy, noting the causes for alarm have escalated in recent years” (p.89). There are no citations of recent examples, though certainly informational privacy has been a growing concern in the literature. But there does not seem to be a dearth of scholars who also explore the individual autonomy/self-determination aspect of privacy – especially since Supreme Court privacy cases from GRISWOLD v. CONNECTICUT to LAWRENCE v. TEXAS have essentially focused on this particular facet.
A chapter on “The Emergence of Infotainment” attempts an indictment of the current state of political satire, with emphasis on Jon Stewart and Stephen Colbert. Barnes complains that “[c]omedic invitations to enter the public dialogue with coarse, obscene, or racy commentary and innuendo are known to injure rather than enhance public knowledge” (p.103). The citations not there might include studies showing that people of a certain (young) age derive much of their knowledge of politics and current events from The Daily Show and The Colbert Report. It may be true that the “unanswered question is whether blanket protection for opinion, parody and political satire serves the public interest and how we might fashion an appropriate means of judicial inquiry in relation to such material” (p.xix), but Barnes provides not even a hint of an answer, and no suggestions as to what the relevant judicial inquiry would look like, opting instead for several titillating examples of supposedly egregious political satire.
Chapter 8 explores the European courts’ comprehensive approach to media invasion, with particular attention to efforts in Great Britain to reconcile Articles 8 and 10 of the European Convention of Human Rights, including Parliament’s search for appropriate mechanisms and institutions to address these concerns. However, as of this writing Britain has had little success in reining in its notoriously freewheeling tabloid press. Nor is one left with a conviction that the European approach is significantly better than America’s “public figure” approach. Princess Caroline, despite her 2004 victory, again has a case against a German publisher before the ECtHR . (One wonders why [*698] Barnes does not analyze Caroline’s latest case – including the German court’s defense of a press devoted only to entertainment.)
A chapter devoted to “undue burdens on celebrity speech and association” provides detailed accounts of various celebrities’ political involvements, including page upon page of the escapades of Jane Fonda, The Dixie Chicks, and Susan Sarandon. It is unclear how their political speech was impaired or how media coverage, however intense, deterred them from speaking out. Barnes ends the chapter with the observation that the soundbites of celebrities are a small part of our national political dialogue. Would that they were a smaller part of OUTRAGEOUS INVASIONS.
The penultimate chapter deals with John Lennon and Michael Jackson, and begins with the observation that “[c]elebrity speech and privacy rights were special targets of the late Wisconsin Senator Joseph A. McCarthy” (p.245). Barnes points to the Hollywood blacklist and notes efforts in 1997 to restore the personal credits of figures in the motion picture industry victimized by Senator McCarthy. Barnes seems unaware that McCarthy did not serve on HUAC and had nothing to do with the Hollywood blacklist, a point made in the 1997 Washington Post article Barnes cites in a footnote.
Lennon’s global peace activism is recounted along with FBI efforts to monitor his activities. Michael Jackson’s life and travails are also detailed, including his contribution to world peace – his “Man in the Mirror” video. Barnes characterizes it as “Jackson’s bold political commentary and visual depictions of the horrors of imperialist tendencies” and wonders if it “signaled a Lennonesque problem for those in power” (p.259). Barnes immediately segues into a discussion of the contemporaneous emerging priest sexual abuse scandal in the Catholic Church, and goes on to discuss Jackson’s subsequent difficulties in this regard. “Yet to prove and punish an actual conspiracy to imprison Jackson we would need a smoking gun so hot that actually finding one lies beyond the realm of probability. Although Jackson has not yet become the threat Lennon remained as a revolutionary activist, we would have to concede that stopping his momentum before he gained that level of potency might have been discussed in certain quarters. However, it was the timing alone in terms of pursuing claims against Jackson that suggests an equally plausible reason: the need for a child-molesting poster boy so large that it would effectively divert public attention so that collective anger against the Catholic Church would not insure its ultimate and speedy demise. . . .The timing of both sets of allegation and charges against Jackson suggests that beyond his threat to the status quo, he was a handy and convenient target for an establishment in desperate need of a scapegoat to spare. . . legions of Church leaders” (p.264).
The Catholic Church is not dead (though it continues to be its own worst enemy). Michael Jackson is at last beyond the depredations of overzealous prosecutors, quacks, shysters, gear-loose conspiracy theorists, tabloid publishers and paparazzi. Why Oxford University Press has sought to join their ranks is yet [*699] another question raised but unanswered by OUTRAGEOUS INVASIONS
Carvajal, Doreen. 2004. “For the Famous, ‘Privacy’ Even in Plain Sight.” THE NEW YORK TIMES, October 10, 12.
Rosenfeld, Stephen S. 1997. “Looking Back on the Blacklisted.” THE WASHINGTON POST, November 28, A27.
ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
NEAR v. MINNESOTA, 238 U.S. 697 (1931).
NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964).
© Copyright 2010 by the author, Philp A. Dynia.