Supermarket tabloids compete with each other in a lot of ways. Who can attract the most readers/eyeballs? Who can come up with the most misleading headline? Who can stretch the definition of “news” to the most absurd degree? But one of the strangest and most downright disturbing areas of competition among tabloids has to be, who can be first to out a celebrity?
In many instances, well-known entertainers have been driven into public revelations about deeply private aspects of their lives after relentless speculation and intrusion from aggressive tabloids and their dubious “sources.” In 2006, ‘N Sync alum Lance Bass finally came out of the closet after years spent hiding his sexuality to appease his female fans and strategic handlers (and the world was duly shocked). Clay Aiken, who rose to fame after placing second on that little show called American Idol, waited until becoming a father to publicly disclose his sexual orientation in 2008. And last year, Latin heartthrob Ricky Martin ended years of public scrutiny and speculation by announcing to the world that he is “a fortunate homosexual man,” forcing an immediate public reevaluation of the lyrics to such modern classics as “Shake Your Bon-Bon” and “She Bangs.”
Lance, Ricky, and Clay decided to come out on their own terms (notwithstanding the slight nudge [read: “very, very forceful shove”] from the Hollywood gossipmongers). But as Law Law Land superfan/mother to our very own Rachel Wilkes recently asked us, what would happen if someone in the know publicly outed a celebrity before that celebrity was ready to do so themselves? Could the furor over that celebrity’s sexual preferences move from the gossip rags to the courthouse docket? Let’s take a look at a recent example.
Eighties pop icon Tiffany recently had a momentary lapse in judgment (and I’m not just talking about her decision to star in the new Syfy movie Mega Python vs. Gatoroid). While making an appearance on Bravo’s Watch What Happens Live, Tiffany “accidentally” outed her once-upon-a-time Knight in shining armor (a.k.a. New Kids on the Block “singer” Jonathan Knight). When asked by host Andy Cohen whether she dated any of the members of the NKOTB, Tiffany admitted to dating the quiet and shy Jonathan Knight. Rather than stopping there, Tiffany blurted out, “He became gay later. I didn’t do it. I had issues with that. I was thinking maybe I did. Now looking back when we were dating, he was so much fun. We used to do facials together. He was so easy to talk to.” (Tiffany must not have had the right stuff, baby.) After realizing that Knight had never publicly commented on his sexuality, Tiffany apologized for this blunder by tweeting, “Really didn’t know that was the wrong thing to say…Never meant to hurt Jon.” Knight seemed to take all of this in stride and tweeted, “Tiff, please don’t lose any sleep over it! I know you weren’t being mean and I found it to be funny!” (Wow, do people ever have face-to-face interactions anymore? I’m still waiting for a celebrity to tweet @ their one-night-stand, “I’m pregnant, and the baby is yours.”)
Knight eventually responded to Tiffany’s outing in greater detail by confirming that he is gay, stating, “I have lived my life very openly and have never hidden the fact that I am gay! Apparently the prerequisite to being a gay public figure is to appear on the cover of a magazine with the caption ‘I am gay.’ I apologize for not doing so if this is what was expected!” (I, for one, thought the guidelines for this sort of thing were clear, but I guess JK never got the memo.) Knight went on to say, “I love living my life being open and honest, but at this time I choose not to discuss my private life any further! My fellow band members don’t discuss their private lives with their loved ones and I don’t feel that just because I am gay, I should have to discuss mine!”
So it looks like Knight, woefully indifferent to the interests of curious legal bloggers everywhere, has decided to take this whole thing in good humor (and in any event, his reaction helps ensure that the celebrity news cycle moves onto something else sooner rather than later). But let’s imagine a world where Knight, having spent years trying to keep his private life truly private, storms into my office, furious and demanding redress. What could I tell him? In true NKOTB fashion, let’s take this step by step.
Step One: Because Knight is, indeed, gay, a defamation claim is out of the question. Rather than boring you with more defamation mumbo jumbo, I will simply say this: defamation must be based on a false statement. Tiffany’s statement about Knight’s sexuality is not false. Tiffany, therefore, cannot be held liable for defamation. The end.
Step Two: What else can Knight do? (Hey, that’s about as good as any rhyme NKOTB came up with in its day!) Well, he could bring an action based on Tiffany’s public disclosure of a private fact. This nifty tort is grounded in the idea that a person should be protected from the wrongful publication of private affairs that are outside the realm of legitimate public concern. In order to prevail, Knight will have to show that there was (1) a public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.
The first requirement should be a slam-dunk for Knight. To constitute a public disclosure, the private fact must be disseminated to the public at large and not just a couple people. Tiffany probably rationalized sharing these private details about Knight after looking around the set and thinking to herself, “I think we’re alone now. There doesn’t seem to be anyone a-rou-ound.” (I am pretty sure this blog can’t get any cheesier!) I mean, she probably thought that she was simply having a conversation with Andy Cohen and Debbie Gibson, right? If that was the case, Tiffany’s statement about Knight’s sexuality would most likely not rise to the level of a public disclosure. Unfortunately, Tiffany overlooked the cameraman, the grip, the director, the security guards, and the millions…er, thousands…er, hundreds of viewers watching at home. Ultimately, no one is going to deny that making an on-camera statement during a cable television show is a public disclosure.
The second requirement would be a little tricky for Knight to satisfy. The fact disclosed to the public must be a truly private fact. According to news reports (and Knight’s recent public statement), Knight has been living an openly gay lifestyle among his friends and family for many years. However, Knight has tried to keep his love life out of the media (although he has not been completely successful) and has never publicly commented on his sexuality (and, of course, he shouldn’t have to!). As a result, Knight functions in two relatively open spheres of life — sphere #1 being his openly gay life with his family and friends and sphere #2 being his life in the spotlight as a NKOTB heartthrob. Depending on just how open Knight was in sphere #1 (i.e., when not dealing with the press or his legions of screaming, crying, no-longer-pre-teen fans), this double-agent lifestyle may prove fatal to a claim for public disclosure of a privatefact.
The third requirement might create some difficulties for Knight as well. Knight would have to show that Tiffany’s disclosure of his sexuality would be highly offensive to a reasonable person of ordinary sensibilities. Unfortunately, discrimination against homosexuals still exists in many parts of this country. As a result, Knight could argue that Tiffany’s statements about his homosexuality would expose him to discrimination, making this disclosure highly offensive. On the other hand, deeming Tiffany’s revelation of Knight’s sexuality as highly offensive plays right into the concept that being gay is somehow embarrassing and needs to be kept a secret (a concept that is slowly disappearing and will hopefully be fully left behind as homosexuals gain equality in all aspects of their lives). Either way, the satisfaction of this requirement depends on the type of “reasonable person” the court considers, making it difficult to determine how this requirement would pan out. In a strange sense, one can hope for a world in which a public outing is never a tort because this “highly offensive” factor can never be satisfied. But we probably aren’t living in that world just yet.
Lastly, the fourth requirement may also prove difficult for Knight to meet. Courts recognize a broad privilege protecting the truthful publication of newsworthy matters. This means that public figures, like Knight, have a lessened right to privacy because of the public’s legitimate interest in their affairs. (As I’m sure you can imagine, Jefferson, Adams, and Madison were allavid readers of the Colonial Enquirer. You should have seen the etchings of Betsy Ross. Scandalous.) Basically, this newsworthiness limitation prevents people who live in the spotlight from complaining about the expected publicity that results from their fame and limits their ability to complain about the “unexpected” publicity that might arise when private facts are discovered and disclosed. And while I may have never been a big NKOTB fan, apparently every other woman who grew up in the 80s and 90s was (or still is), and most (if not all) of these women probably have a desire to learn of this information about their beloved NKOTB singer. As a result, although the law doesn’t eradicate celebrities’ right to privacy altogether, there is some risk that a court will find that Knight’s sexuality is a newsworthy fact that cannot be the basis of a claim for public disclosure of a private fact.
Step Three: In order to avoid liability, Tiffany might try to argue that she did not intend to hurt Knight and that this disclosure was made “by accident.” Unfortunately for Tiffany, these arguments will have virtually no merit in the courtroom. Her good faith and lack of a motive to hurt Knight are irrelevant for purposes of these torts, as is any claim of inadvertence or mistake. So Tiffany’s claims of an “accidental” and “good faith” disclosure will not shield her from liability for violating Knight’s right of privacy (although, if Knight were to prevail, they would potentially be relevant in assessing damages, particularly eligibility for “punitive damages,” which requires that a defendant act willfully or maliciously).
Step Four: “I can give you more” (possibly on the NKOTB comeback tour).
Step Five: Okay, there is no step five, but I had to get to this final step in order to fully pay homage to the NKOTB song.