Prisoners of Fame: How an Expanded Use of Intrusion Upon Psychological Seclusion Can Protect the Privacy of Former Public Figures

IntroductionAt the 2013 Golden Globe Awards, Jodie Foster was honored with a lifetime achievement award for her forty-seven-year film career.1 Ac- cepting her award in front of Hollywood's elite and a television audi- ence of nearly twenty million, the fifty-year-old actress publicly ad- dressed the question of her sexuality.2 In her speech, Foster vigorously defended her right to privacy in a society in which "every celebrity is expected to honor the details of their private life with a press confer- ence, a fragrance, and a primetime reality show."3 Foster followed that quip with her strongest argument for her right to privacy, stating, "But seriously, if you had been a public figure from the time that you were a toddler, if you'd had to fight for a life that felt real and honest and normal against all odds, then maybe then you, too, might value privacy above all else."4 Whether interpreted as inspiring, passionate, or even hypocritical, Foster's speech captured the societal and emotional pres- sures she and other public figures face.5Public figures like Jodie Foster face enormous legal hurdles when trying to protect their sense of privacy.6 Constitutionally, the First Amendment affords "breathing space" for false speech about public figures by placing higher burdens of proof on plaintiffs who bring def- amation and false light invasion of privacy claims.7 The freedom of the press and the public's "right to know" have also limited the utility of the common law invasion of privacy claim for the publication of private, truthful facts.8 Moreover, legislation attempting to target offensive newsgathering methods, such as antipaparazzi statutes, falls short when trying to address privacy concerns that conflict with First Amendment principles.9 Similarly, the common law invasion of privacy claim for in- trusion upon seclusion has been mainly understood to prohibit offen- sive intrusions into private, physical spaces.10Notwithstanding these problems, the U.S. Supreme Court has de- fined degrees of public figure status under the First Amendment that correspond with plaintiffs' burden of proof when trying to recover for the publication of false information.11 In 1974, in Gertz v. Robert Welch Inc., the Court established three classes of public figures in the context of defamation.12 First, all-purpose public figures are those individuals, like Jodie Foster, who have reached levels of "pervasive power and in- fluence" in society.13 Second, limited-purpose public figures are indi- viduals who voluntarily enter into a specific public controversy in order to influence the outcome of that particular issue.14 Finally, involuntary public figures are individuals who are drawn into a public controversy through no intentional action of their own.15 Generally speaking, lim- ited-purpose and involuntary public figures are required to present a clear and convincing showing of actual malice-knowledge of falsity or the reckless disregard of the truth-for establishing defamation only if the defamatory material relates to the matters that make them public figures.16 Conversely, all-purpose public figures must prove actual mal- ice in all defamation cases.17When it comes to the publication of truthful information, how- ever, there is no common law distinction between the treatment of all- purpose, limited-purpose, and involuntary public figures.18 Courts have ruled that voluntary public figures (i.e., all-purpose and limited- purpose individuals) waive their privacy rights by seeking prominence in the public forum.19 Instead of consenting to the loss of privacy, in- voluntary public figures are deemed to have simply lost their privacy rights due to the "newsworthiness" of their lives.20More disconcerting is the treatment of former public figures- indi- viduals who had once been involved in a particular public controversy but have since receded from the public sphere-because there is cur- rently no way for them to regain the privacy rights they once had as pri- vate citizens. …