Alumni Profiles

Barnes '89 rethinks America's voracious media culture

Don't cry for Tiger Woods, or Paris Hilton, or Tom Cruise, or Sandra Bullock.

Life in the public eye has paid a lot of mortgage payments and opened a lot of doors for them. But don't think that just because they're celebrities, their intimate family lives are fair game for public consumption, argues Robin Barnes '89. Despite the cherished protections of the First Amendment, she says it's time to rethink the indelicate balance between free speech and privacy rights.

Barnes, a professor of constitutional law at the University of Connecticut Law School, makes that argument in a recently published book, Outrageous Invasions: Celebrities 'Private Lives, Media, and the Law (Oxford University Press).The author was at UB Law School this summer as a visiting professor of research, trading ideas with her fellow scholars and working on a proposal for her next book.

In Outrageous Invasions, Barnes looks at the contrasts between European and U.S. law around privacy rights. She says that U.S. jurisprudence has fiercely defended unfettered media rights, reasoning that the First Amendment insistence on a free press should trump privacy considerations. But, she says, European law includes strong provisions for protecting individual privacy, and the media environment abroad is still robust.

"We have a problem in the United States," Barnes says. "Our myopia and commitment to the First Amendment and freedom of speech has overshadowed what we traditionally understood as the needs of a democratic society."

The tension goes back to the landmark 1964 Supreme Court decision in New York Times v. Sullivan, in which the court ruled that public officials could not successfully sue media outlets for defamation unless they proved "actual malice." Subsequent rulings extended that standard to non-government public figures – athletes, artists, musicians, authors, actors, even "regular Joes and Janes involved in matters of public concern," Barnes says.

The media culture today is, of course, much different than it was in 1964.And even when celebrities succeed in suing over tort law violations, circuit courts routinely reduce awards for damages significantly. "The deterrent effect for publishers is still not there," she says.

To tip the balance back toward individual privacy, Barnes suggests the United States could learn from European law. For example, she cites a statute in France that photos of an individual can't be published without his or her permission."If it's a public photograph - if Princess Caroline showed up at a Monaco event as part of her official duties - then yes. But her tripping over something at the Monaco beach club in her bathing suit is off-limits."Implementing such a law in the United States, she says, would remove the economic incentive that paparazzi have for stalking celebrities.

Barnes even argues that permitting injunctive relief - allowing a court to prohibit publication or broadcast of intrusive material – could be salutary. "There are those moments in time when that system could work well," she says.

The tenor, she says, should be set by the European Convention on Human Rights, which "talks specifically about familial dignity and how individuals have the right to expect privacy for their home and private life."