Moderator: Amy Gajda, Tulane University School of Law
Speakers: Robin D. Barnes, University of Connecticut School of Law
Chris Crocker, Actor, Blogger, Prolific Entertainment, New York, NY
Tia Maria Torres, Star of “Pit Bulls and Parolees” (Animal Planet), Villalobos Rescue Center, New Orleans, LA
Valerie Veatch, Filmmaker, Me @ the Zoo, Prolific Entertainment
Eugene Volokh, UCLA School of Law
Andrew Weaver, Assistant Professor, Indiana University,
Documentary about Crocker’s experiences. Crocker spoke about the difference between the in-person hatred he experienced and the anonymous hatred, which posed a separate danger (he spoke of his grandparents). Positive and negative were both ramped up (people who reached out to him and said they felt unsafe at school too, death threats).
Torres: needed the money; on the brink of closing the doors of her nonprofit. Keeps things private even on the show. Public attention is more positive than for Crocker, but she has been grabbed. Said the crew was secondary to the animal rescue: she’d leave them behind if they didn’t keep up. Contrast to Kardashians, which she described as a scripted show: no need to create personal drama.
Barnes: it’s wrong to essentially imprison Chris Crocker because he’s threatened. Gay teens are bullied, threatened—fixating on why they didn’t like him, as one of Crocker’s clips did, is the most important thing. Celebrity culture can distract from problems like the economic crisis and bank bailouts.
Volokh: has more positive view of free speech. Westboro Baptist is nasty people, but expressing their views. Expressing 1000 feet from funeral and on web doesn’t strip it of constitutional protection. Lots of silly stuff is distracting people from important issues. That’s not enough justification for restricting speech.
Crocker doesn’t buy slippery slope arguments as to protests at children’s funerals.
Torres: when the show went on, her adopted sons’ mother resurfaced and made a number of accusations against Torres, including passing them out to the entire town. Lawyers said as a public figure she was fair game.
Crocker: people think whether it’s a D-list celebrity or A-list celebrity, whether I deliberately uploaded videos at age 18 (right when viral video was getting started), they’re entitled to attack you. People stop seeing celebrities as human; think they have all these great things and that they’re so accessible that they’re ours.
Torres: when I go out in public, people say “we watch your show, you’re ours.” You’re on TV = you belong to us.
Crocker: especially with reality TV; you’re in their homes.
Torres: I come across very angry when I’m confronted in public.
Crocker: they say you deserve it because you put yourself on TV.
Gadja: courts are likely to agree.
Volokh: celebrity or not, there are laws prohibiting death threats—may not be as well enforced as we’d like, but they exist. There are laws against assault. Don’t lay that against the First Amendment. (Sure, and I agree—but doesn’t culture matter? How do we create boundaries that don’t rely on restricting speech? There’s a reason that “sticks and stones may break my bones but words will never hurt me” generally seems unpersuasive, and so we rely on teaching potential boundary violators that some kinds of hurt are ok and some aren’t; this is difficult.)
Crocker: the gray area is protests at kids’ funerals. Imagine the harm inflicted on the parents and grandparents by protests.
Weaver: invasion of privacy will be even more an issue in the future. Reality TV is what people want; it’s not going away because it provides unique gratifications—social comparison, identification with characters, information-seeking: comes from fiction, but more salient from real people. All else being equal, people like reality shows more the more they feature fly-on-the-wall cameras, voyeuristic view, night vision cameras; telephone conversations are more enjoyable if the camera seems to be looking in without being observed itself. People know on some level that they’re on camera.
Gadja: but sometimes people forget.
Torres: distinguishes between Kardashians, who did ask for it, and herself: she did it to survive/to keep her job. Why does that make her a public figure?
Volokh: if someone calls you a drug dealer and knows you’re not or recklessly disregards the evidence, then even a celebrity would have a cause of action, except that you couldn’t get damages from someone with no money. That means there are interesting questions about injunctions and criminal libel prosecutions. The First Amendment allows criminal prosecutions and probably permanent injunctions. The difference is that people have more latitude for honest but unreasonable mistakes about public figures.
Gajda: Hulk Hogan sex tape case?
Volokh: he believes invasion of privacy tort is a bad idea; newsworthiness is too vague a standard. Courts have held publishers liable for revealing public facts about prior convictions (though he thinks that case is unlikely to be followed today) or about sex changes. As to Hulk Hogan, the tape was newsworthy, though many courts have found sex tapes non-newsworthy. There’s room for a narrow cause of action for sex tapes, but with a better definition.
Sonja West has an excellent article pointing out that facts about a person are quite often facts about other people too: they are relational. Telling your own story/truth may require telling stories/truths about other people. Freedom of speech thus requires freedom to talk about other people even in its narrowest self-defining aspects.
Torres: positives (in response to a Q): adoptions and donations have soared. We’ve been able to help guys leaving prison move on. The positives have come to the organization, though the negatives are concentrated on her.
Volokh: in response to question about newsworthiness: would eliminate it entirely, not to be replaced by outrageousness—people should decide for themselves the relevance of information. The basic right is the right to talk about whatever they want, so long as they’re saying truthful things or expressing an opinion.
(But what gets translated into being recognized as creating a risk of harm that goes beyond talk? Death threats, yes. Disclosure of gun ownership?)
Barnes: public figure has expanded beyond politicians to newsworthiness—if you’re a private person who happens to do something that is an example of a larger public controversy (like owning a gun, maybe?) then you lose private-figure status. But when people are dying from harassment it’s gone too far.
Q: instinct is that in jurisdictions with strong libel laws people are not necessarily nicer to each other. Can law help? What do you want?
Torres: I wanted my harasser to go away. She was able to picket in front of my house because she had a right to be on the public easement.
Showed clip of Crocker’s famous ‘leave Britney alone’ video and a variety of critical, dismissive, harassing, and frankly threatening responses thereto.
Crocker: at 19, he felt that he had the right to say whatever he wanted and not expect criticism or threatening phone calls (both of which he got). Now, he might do things differently. (Though part of the point is that we let teenagers online and need to understand what to do with them!)
Volokh: a British man was successfully prosecuted for saying that all British soliders should die and were scum. That’s one of the prices of lack of free speech: you’re not free to be grossly offensive. A woman posted a picture of a burning poppy (symbol of WWI) and was successfully prosecuted. The First Amendment isn’t holy, but he likes how it works. He doesn’t want the gov’t to decide what pollutes public discourse. Viewpoint neutrality allows horrible advocacy to be tolerated but has served America well.
On public figures: if Crocker had just posted to 100 people, copyright law might protect him. Also most such videos wouldn’t trigger public disclosure of private facts tort. Disclosure to 100 would also be too much there, though maybe disclosure to 3 would still be protected.