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Out of the Closet and Into the Headlines:

"Outing" and the Private Facts Tort


RONALD F. WICK*

A small corner of the journalism world shook fiercely in late March of


1990, and the profession has not been the same since. The instigator was not
a national magazine, one of the television networks, or even a major metro-
politan newspaper. It was a relatively unknown gay magazine called Out-
Week, and the bomb it dropped was a cover story titled The Secret Gay Life
of Malcolm Forbes.'
Forbes, the recently deceased publishing tycoon and celebrated adven-
turer, had posthumously become the latest victim of a tactic known in the
gay community as "outing"-making public allegations of homosexuality in
an effort to force the subject to come "out of the closet" and go public with
his lifestyle. 2 The practice had been confined primarily to supermarket tab-
loids and gay publications, but the Forbes allegations soon found their way
3
into the mainstream press, and outing suddenly took on new significance.
In the wake of the Forbes article, outing gained national attention. Several
publications printed news articles about the phenomenon, often extending it
themselves by illustrating the stories with specific examples of recent victims
of "outing. ' '4 An unspoken but apparently longstanding commitment by the
mainstream press to respecting the privacy of gay subjects is slowly falling by

* J.D., Georgetown University Law Center, 1992; A.B., Cornell University, 1986.
1. Pat H. Broeske & John M. Wilson, Outing TargetsHollywood, L.A. TIMEs, July 22, 1990, at 6.
2. In the wake of the Forbes piece and many that followed it, OutWeek earned a reputation as
the most notorious practitioner of outing. Charlotte Low Allen, The World is Outing, WASH.
TIMES, Sept. 13, 1990, at El. The author of the Forbes piece, Michelangelo Signorile, wrote a
regular column titled Gossip Watch, which the Times described as "a stream of invective at a variety
of targets, including closet cases [and] critics of outing." Id. Out Week retained its role at the
forefront of outing until it folded last June-only days before it reportedly was scheduled to "out" a
gay Pentagon official. James Cox, 'Outweek' Magazine Goes Out of Business, USA TODAY, July 1,
1991, at 2B.
3. Broeske & Wilson, supra note 1, at 6 (Forbes article generated first serious national attention
to outing). Targets immediately following Forbes included a national politician with a wholesome
image and a "mixed" voting record on gay rights, a syndicated columnist, a governor who voted
against a proposal supported by the gay rights movement, and two male screen idols. Eleanor
Randolph, The Media, at Odds Over 'Outing' of Gays, WASH. POST, July 13, 1990, at Cl.
4. Broeske & Wilson, supra note 1, at 6. After a television talk show host decided to cancel the
taping of a show that was to feature allegations that a prominent actress was gay, one columnist, in
reporting the decision, identified the actress. Id.
Arguably, by identifying Forbes as the target of the OutWeek piece, this note itself engages in
"outing." Forbes is the only such target named in this note. Given the significant role the OutWeek
story about Forbes played in the development of outing, the extent to which Forbes has been identi-
fied in other publications, and that he is deceased, the value of his name to this discussion would
seem to outweigh the severity of any additional invasion of his privacy committed by this note.
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

the wayside, 5 resulting in a heightened threat to those gay individuals who


6
choose to keep their sexual orientation a secret.
Accordingly, the debate about the morality of outing has evolved from an
internal political battle within the gay community to a more widespread dis-
cussion of journalistic ethics. Those opposed to outing call it a vicious inva-
sion of a subject's privacy. 7 Gay publications that engage in outing defend
themselves by claiming their actions help the gay cause by increasing the
number of gay role models, 8 while the nongay press points to the extensive
public interest in the sex lives of celebrities and the widespread and accepted
practice of writing about other aspects of their private lives. 9
As the controversy intensifies, this much becomes clear: it is only a matter
of time before this battle between the press and advocates of sexual privacy

5. Broeske & Wilson, supra note 1, at 6.


6. Outing again became a prominent issue in the mainstream press in August 1991, when The
Advocate, a Los Angeles-based gay magazine, published Signorile's allegations that a high-ranking
Pentagon official was gay. William A. Henry III, To "Out" or Not to "Out," TIME, Aug. 19, 1991,
at 17.
Nor is outing the exclusive province of the media. Last April, Manhattan residents were sub-
jected to a rash of posters featuring pictures of celebrities, captioned either "Absolutely Het" or
"Absolutely Queer." Zoe Heller, Outed, THE INDEPENDENT, June 16, 1991 (Sunday Review Page),
at 12. In June, a gay activist entered a gay bar in Alexandria, Virginia, threw a drink in the face of a
prominent Wisconsin politician, and demanded that he "come out of the closet." Howard Kurtz,
Gay Activist Seeks Coverage of an 'Outing, WASH. POST, July 10, 1991, at Fl. And in 1989, months
before the Forbes piece appeared, Rep. Barney Frank (D-Mass.), an openly gay congressman who
was angered by innuendos that a Democratic colleague was secretly gay, threatened to retaliate by
revealing the homosexuality of Republican congressmen who allegedly were responsible. Dirk
Johnson, Privacy v. the Pursuit of Gay Rights, N.Y. TIMES, Mar. 27, 1990, at A21. But while the
media is certainly not the only perpetrator of outing, the effects of its actions in this sensitive area
are more severe than those of more isolated instances.
7. One actor told the Los Angeles Times that outing "can completely destroy careers." Broeske &
Wilson, supra note 1, at 6. A film critic described outing as "character assassination. If you under-
stand McCarthyism, you understand outing." Id.
8. Gabriel Rotello, former editor of OutWeek told the New York Times: "It's taken for granted
that other minorities deserve to have role models, so why not gays?" Johnson, supra note 6, at A21.
Added Signorile, the author of the Forbes piece: "The gay movement can't sit around and take
second place to the Hollywood dream factory, so some people can make a lot of money.... I look
at our gay leaders... and I ask, 'Why are you talking about a select group of millionaires when the
issue involves the salvation of millions of people?' " Broeske & Wilson, supra note 1, at 6. An
openly gay actor told the Los Angeles Times of his desire for a role model when he was growing up:
"One little name.., would have made all the difference in the world to me, and nobody gave me
that name." Id. The recent outing of a high-ranking Pentagon official, however, was prompted by a
different motive: a desire to embarrass the Pentagon for its exclusion of gay people from the armed
services. Henry, supra note 6, at 17.
Several months after outing had begun to receive national attention, many activists on both sides
of the debate speculated that outing may have benefitted the gay rights movement. Beth Ann Krier,
Some Say Practiceof 'Outing' May Have Benefitted Gay Rights, L.A. TIMES, Dec. 31, 1990, at E2.
9. A gossip columnist for one tabloid says that "it's as legitimate to write about gay relationships
as it is to write about Liz and Dick ....To write about someone and not include information-if
you have it-about their being gay, or having had gay affairs, is like saying it's a crime." Broeske &
Wilson, supra note 1, at 6.
1991] OUTING AND THE PRIVATE FACTS TORT

expands beyond the talk shows and finds its way into the courts. As a legal
battle, however, outing is particularly problematic, because libel-the tradi-
tional cause of action for disputes between the media and the subjects of its
coverage-is unavailable to victims of outing. The simplest defense against a
libel suit is truth, 10 and in the typical outing case, the allegations of the sub-
ject's homosexuality are true.'I Furthermore, a successful libel claim re-
quires a showing of defamation, but courts would likely be reluctant to base
defamation on an accurate allegation of homosexuality. As Harvard Law
School professor Alan Dershowitz put it: "No court is going to say that
calling someone gay is legally defamatory, because to say that is to buy into
the notion that being gay is somehow bad. On the other hand, you and I
2
know that being exposed as gay can be harmful to a person."'
Therefore, a gay person who wants to sue a publication for exposing his
homosexuality will have to resort to the relatively unheralded tort of invasion
of privacy, 4 which requires neither falsity nor defamation.' 3 The relevant
"subtort,"' public disclosure of private facts, has been used sparingly; 15 it
has been invoked only once in a case involving disclosure by the media of a
subject's homosexuality, and the facts of that case are likely to bear little
6
resemblance to the typical outing case.'
This note argues that the current interpretation of the private facts tort, as
formulated in the Restatement (Second) of Torts,17 ultimately will spell doom

10. RESTATEMENT (SECOND) OF TORTS 581A (1977); cf New York Times v. Sullivan, 376
U.S. 254, 278-79 (1964) (libel statute not automatically constitutional merely because truth is a
complete defense).
11. The issue in outing is not the truth of the allegations but the intrusion on the private life of
the subject. The focus of this note is on cases in which the allegations are indeed true.
12. Broeske & Wilson, supra note 1, at 6.
13. RESTATEMENT (SECOND) OF TORTS 652A (1977).
14. In most jurisdictions, the tort of invasion of privacy actually consists of four distinct "sub-
torts": intrusion, appropriation of name or likeness, public disclosure of private facts, and false light
invasion of privacy. Id. Conceivably, outing could violate two of these subtorts: intrusion, which
involves the process by which information is gathered, and false light invasion of privacy, which
governs nondefamatory falsehoods. For the purpose of focusing the inquiry on public disclosure of
private facts (described in the Restatement as "publicity given to private life" but cited throughout
this paper simply as "the private facts tort"), this note will assume that the typical outing case is one
in which the information published is accurate and was not gained by unlawfully intrusive means.
15. A 1983 survey of state case law found fewer than 18 cases in which a plaintiff was either
awarded damages or found to have stated a cause of action for wrongful disclosure of private infor-
mation sufficient to withstand a motion for summary judgment or a motion to dismiss. Diane L.
Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis' Privacy Tort, 68
CORNELL L. REV. 291, 293 n.5 (1983).
16. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665 (Cal. Ct. App. 1984). This case is
discussed in detail in Part II.
17. RESTATEMENT (SECOND) OF TORTS 652D (1977).
The private facts tort is a creature of state law, and each state treats it differently. Some recog-
nize it by statute, others have recognized it in case law, and others fail to recognize it explicitly at
all, often because they have not had the occasion to do so. See Zimmerman, supra note 15, at 365-
416 THE GEORGETOWN LAW JOURNAL [Vol. 80:413

for a gay plaintiff who desires to sue a publication for outing, a result that is
only partially justified. While the newsworthiness defense available to the
media under the First Amendment rightfully allows it generous leeway with
respect to the sexual orientation of many public figures, the current interpre-
tation of the Restatement test wrongfully threatens to prevent recovery by
any but the most private of citizens with the most closeted of gay lifestyles.
In short, whatever faint traces of a cause of action for outing may exist in the
Restatement are quickly fading into oblivion, primarily because the questions
the Restatement tells courts to ask are not sufficiently protective of a plain-
tiff's privacy.
Part I will discuss briefly the historical development of the private facts
tort. Part II then applies the tort, as articulated in the Restatement, to a
hypothetical lawsuit by a gay plaintiff in order to demonstrate that the thin
body of existing private facts cases provides little support for victims of out-
ing. Part III will examine why a tort that seems tailor-made for victims of
outing fails to advance their cause, suggesting that the "private facts" and
"legitimate public concern" prongs of the Restatement test significantly un-
dervalue the privacy rights of these victims. Part III will propose that the
Restatement test should be modified accordingly. Part IV, however, argues
that social and constitutional considerations would require that even a prop-
erly modified test exclude truly public figures from stating a cause of action
for outing. Part V will conclude that, in general, courts should provide
broader protection to gay plaintiffs in private facts cases than the current
Restatement test encourages them to provide, and thereby preserve a cause
of action for outing for private and semipublic victims.

I. THE PRIVATE FACTS TORT

The origins of the private facts tort date back to 1890, when Samuel War-
ren and Louis Brandeis published their now-famous article The Right to Pri-
vacy.' 8 Observed Warren and Brandeis: "Instantaneous photographs and
newspaper enterprise have invaded the sacred precincts of private and do-
mestic life; and numerous mechanical devices threaten to make good the pre-
diction that 'what is whispered in the closet shall be proclaimed from the
house-tops.' "19 The authors noted that the law had gradually expanded its
protection of the individual from covering merely his physical property to

67 (summarizing each state's position on the private facts tort). Rather than become mired in a
cumbersome comparison of the different variations on the private facts tort, this note will focus on
the formulation articulated in the Restatement (Second) of Torts as a fair representation of the
generally accepted principles of the tort.
18. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
19. Id. at 195.
1991] OUTING AND THE PRIVATE FACTS TORT

include his bodily safety, reputation, and general well-being; 20 they con-
cluded that prior individual cases hinting at various forms of privacy were
based on a broader principle entitled to separate recognition. 2' Warren and
Brandeis called upon the law to take its current protections one step further
by enforcing an obligation on the part of the media to recognize "the right to
'22
be let alone."
Warren and Brandeis's manifesto was considered in a 1902 case, in which
a plaintiff alleged that a flour company had placed her portrait on its adver-
tising posters without her consent. 23 She asked the New York courts to
grant her relief on the theory of invasion of privacy. 24 The court declined to
recognize a cause of action for invasion of privacy, 25 but the New York legis-
26
lature created such a cause of action a year later.
Courts in other states began to follow the lead of the New York statute. In
1905, a Georgia court allowed a plaintiff to state a cause of action when he
complained that a newspaper advertisement had included his name and por-
27
trait and attributed a fictional testimonial to him, all without his consent.
Also among the first states to follow suit were Kansas in 191828 and Ken-
tucky in 1927.29
Two significant invasion of privacy cases relevant to the private facts tort
were decided in the early 1940s. In Sidis v. F-R Publishing Corp.,30 a former
child prodigy who had hoped to live his adult life in obscurity sought dam-
ages in the wake of a highly detailed magazine profile explaining how his life
had progressed; the court, in affirming the dismissal of his claim, recognized
newsworthiness as a limitation on the invasion of privacy tort, reasoning that
"at some point the public interest in obtaining information becomes domi-
nant over the individual's desire for privacy. ' 3 1 In Cason v. Baskin, 32 how-
ever, a Florida court refused to recognize similar "newsworthiness"
limitations on the subject matter of a disputed disclosure; the court con-
cluded that some people find publicity "extremely distasteful, disturbing and

20. Id. at 194-95.


21. Id. at 195-98 (noting that although privacy invasion bears a superficial resemblance to the
law of slander, the two are based on different principles: slander is based on damage to reputation in
the external community while the privacy invasion tort protects against mental suffering).
22. Id. at 195.
23. Roberson v. Rochester Folding Box Co., 64 N.E. 442, 442 (N.Y. 1902).
24. Id. at 443.
25. Id. at 447.
26. N.Y. Civ. RIGHTS LAW 50 (McKinney 1976).
27. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 81 (Ga. 1905).
28. Kunz v. Allen, 172 P. 532 (Kan. 1918).
29. Brents v. Morgan, 299 S.W. 967 (Ky. 1927).
30. 113 F.2d 806 (2d Cir. 1940).
31. Id. at 809.
32. 20 So. 2d 243 (Fla. 1944).
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

painful" even though the disclosure had portrayed the plaintiff as a "fine and
33
attractive personality.
William Prosser eventually distilled the generalized invasion of privacy
tort into four specific variations, including the private facts tort.34 The Re-
statement similarly treats four distinct privacy torts, defining the private
facts tort as follows:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his privacy, if the matter
publicized is of a kind that (a) would be highly offensive 3to
5
a reasonable
person, and (b) is not of legitimate concern to the public.
A close reading of this definition reveals three issues relevant to the deter-
mination of an action when the matter disclosed is the plaintiff's homosexu-
ality. 36 The first issue is the extent to which the plaintiff must have kept his
lifestyle secret in order to be able to claim that his homosexuality was a mat-
ter concerning his "private life." The second issue is whether the disclosure
of one's homosexuality "would be highly offensive to a reasonable person."
The third issue, a descendant of the newsworthiness limitation recognized in
Sidis, is the extent to which the plaintiff's homosexuality is "of legitimate
concern to the public."

II. PULLING OUT THE CRYSTAL BALL: APPLYING THE RESTATEMENT


TEST TO A POTENTIAL OUTING CASE

Using the Restatement test to predict the outcome of a future outing case
is an exercise in frustration, because the private facts tort is arguably the
most unsettled, and therefore unpredictable, area of media law. Not only are
the private facts cases in this country relatively few in number, but the pri-
vate facts tort is the province of state law; the cases are distributed geograph-
ically such that most states have a body of private facts law consisting of, at
best, a handful of cases. To further complicate the inquiry, even fewer cases
involve disclosures of matters even remotely analogous to sexual
37
orientation.

33. Id. at 246-47.


34. William Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960).
35. RESTATEMENT (SECOND) OF TORTS 652D (1977).
36. The tort also requires that the disclosure be public, but given that outing is a creature of the
mass media, this issue is not in dispute.
37. For example, several cases in which plaintiffs have successfully stated a cause of action in-
volve the publication or widespread dissemination of embarrassing photographs or film rather than
the disclosure of factual information. See, e.g., Huskey v. National Broadcasting Co., 632 F. Supp.
1282 (N.D. I11. 1986) (prisoner filmed against his wishes); McCabe v. Village Voice, 550 F. Supp.
525 (E.D. Pa. 1982) (newspaper photograph of model taking bath after consent was forged);
Bazemore v. Savannah Hosp., 155 S.E. 194 (Ga. 1930) (newspaper photograph of plaintiff's baby
born with heart outside its body); Lambert v. Dow Chem. Co., 215 So. 2d 673 (La. Ct. App. 1968)
1991] OUTING AND THE PRIVATE FACTS TORT

The common law does offer a few clues, however, to suggest that a victim
of outing would receive less than a warm welcome under the Restatement
test. To examine the most ominous of these clues, and to set up a framework
for examining the others, the first place to look is the one private facts case to
date that has dealt specifically with homosexuality.

(photograph of injured employee's unsightly wounds distributed to other employees as part of com-
pany's attempt to promote safety). Other cases are not only unrelated to sexual orientation but do
not involve the media. See, e.g., Vassiliades v. Garfinckel's, 492 A.2d 580 (D.C. App. 1985) (de-
partment store presentation included "before" and "after" photographs of plaintiff's plastic sur-
gery); Killilea v. Sears, Roebuck & Co., 499 N.E.2d 1291 (Ohio Ct. App. 1986) (department store
security officer arrested plaintiff without probable cause, made disparaging remarks about her in
presence of customers, and publicly paraded her through store).
A sampling of cases in which the plaintiffs' private claims have been rejected also reveals a wide
variety of fact patterns that shed little light on a potential sexual orientation case. See, e.g., Faloona
v. Hustler Magazine, 799 F.2d 1000 (5th Cir. 1986) (nude photographs of mother and two minor
children in magazine not actionable because previously published elsewhere and thus no longer
private); Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981) (disclosure of plaintiff
physician's personal problems and psychiatric history in article about medical malpractice not ac-
tionable because of legitimate public interest in malpractice issue and factors affecting doctors' per-
formance); Samuel v. Curtis Publishing Co., 122 F. Supp. 327 (N.D. Cal. 1954) (photograph of
plaintiff restraining woman from suicidal jump off Golden Gate Bridge not actionable because in-
sufficiently offensive to plaintiff); Goodrich v. Waterbury Republican-American, 448 A.2d 1317
(Conn. 1982) (articles about developer's difficulties in building shopping center and noncompliance
with permit requirements not actionable because newsworthy); Cape Publications v. Bridges, 423
So. 2d 426 (Fla. Dist. Ct. App.) (newspaper account of plaintiff's abduction by her husband, who
forced her to disrobe, accompanied by photograph of plaintiff after rescue wearing only a dish towel
not actionable because newsworthy), petitionfor review denied, 431 So. 2d 988 (1982), cert denied,
464 U.S. 893 (1983); Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289 (Iowa 1979)
(disclosure that plaintiff had been involuntarily sterilized while resident of county home not action-
able because matter of public record), cert. denied, 445 U.S. 904 (1980); Bremmer v. Journal-Trib-
une Publishing Co., 76 N.W.2d 762 (Iowa 1956) (newspaper photo of decomposed body of
plaintiff's son not actionable because newsworthy); Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d
1386 (La. 1979) (newspaper photograph of plaintiff's home, accompanied by caption referring to
the home as "a bit weatherworn and unkempt," not actionable because taken from public street and
without any physical intrusion on homeowners); Bilney v. Evening Star Newspaper Co., 406 A.2d
652 (Md. Ct. Spec. App. 1979) (disclosure of academic records of six university basketball players
not actionable because newsworthy); Cefalu v. Globe Newspaper Co., 391 N.E.2d 935 (Mass. Ct.
App. 1979) (photograph of plaintiff standing in unemployment line not actionable because taken in
government building and no private fact revealed); Ledsinger v. Burmeister, 318 N.W.2d 558
(Mich. Ct. App. 1982) (store owner's use of the word "nigger" in ejecting black plaintiff from store
not actionable on private facts grounds because comment merely revealed defendant's race; defend-
ant's race was not a private fact, nor was disclosure of it offensive); Fry v. Ionia Sentinel-Standard,
300 N.W.2d 687 (Mich. Ct. App. 1980) (disclosure that body of plaintiff's husband, killed in fire,
was found with body of another woman, and that the two decedents had been seen together before
the fire, not actionable because matter of public record); Montesano v. Donrey Media Group, 668
P.2d 1081 (Nev. 1983) (disclosure of plaintiff's involvement in hit-and-run accident 20 years ago
not actionable because matter of public record), cert. denied, 466 U.S. 959 (1984); Meetze v. Associ-
ated Press, 95 S.E.2d 606 (S.C. 1956) (publicity given to 12-year-old girl after giving birth to healthy
baby not actionable because unusual enough to be newsworthy).
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

A. THE SIPPLE CASE

In 1975, an assassination attempt on President Gerald Ford in San Fran-


cisco was thwarted in part by an ex-Marine named Oliver Sipple, who struck
the arm of Sara Jane Moore as she was about to shoot at Ford. 38 Sipple's
efforts won him instant acclaim as a national hero, and 39he became the subject
of intense coverage in newspapers across the country.
Two days after the assassination attempt, the San FranciscoChronicle pub-
lished a column revealing Sipple's prominent position in the local gay com-
munity. The national press soon picked up on this revelation and speculated
that Sipple's homosexuality might have contributed to President Ford's fail-
ure to thank Sipple promptly. 40 Although Sipple had made no secret of his
homosexuality-he frequented gay bars, marched in gay parades, and associ-
ated with leaders of the San Francisco gay movement-Sipple sued the
Chronicle for invasion of privacy, claiming he had relatives in other parts of
the country from whom he had kept his homosexuality private. 41 As a result
of the disclosure, Sipple claimed, his family had abandoned him, and he had
been subjected to "contempt and ridicule causing him great mental anguish,
'42
embarrassment and humiliation.
In Sipple v. Chronicle PublishingCo., 43 a California appellate court upheld
summary judgment for the newspaper on two grounds." First, it held that
the facts disclosed by the Chronicle were not private facts. 4 5 The court said
that Sipple's sexual orientation was already in the public domain, so the press
"did no more than to give further publicity to matters which [Sipple] left
open to the eye of the public.. . ."" Second, the court found merit in the
Chronicle's defense that the facts disclosed were of legitimate public con-
cern. 47 The court reasoned that the publication of Sipple's sexual orientation
was motivated by "legitimate political considerations": a desire to combat
the public perception of gay people as "timid, weak and unheroic" and an
interest in examining potential bias on the part of President Ford. 48
In short, the court resolved not merely one, but two of the three issues
posed by the Restatement in favor of the Chronicle: the court found that

38. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665, 666 (Cal. Ct. App. 1984).
39. Id. at 666.
40. Id. (some articles speculated that President Ford failed to thank Sipple promptly because
Sipple was gay).
41. Id. at 667 (Sipple claimed that his parents, brothers, and sisters first learned of his sexual
orientation by reading the articles).
42. Id.
43. 201 Cal. Rptr. 665 (Cal. Ct. App. 1984).
44. Id. at 668.
45. Id. at 669.
46. Id.
47. Id.
48. Id. at 670.
1991] OUTING AND THE PRIVATE FACTS TORT

Sipple had failed to show that his homosexuality was a matter concerning his
private life, and that he had failed to show that his homosexuality was not a
matter of legitimate public concern. Because the court found these two ele-
ments missing, it did not need to decide whether homosexuality was the type
of matter that would be highly offensive to a reasonable person.
The Sipple case certainly is no sign of encouragement for gay people look-
ing to use the private facts tort. The facts in Sipple, however, were so unfa-
vorable to the plaintiff that it is hardly dispositive as to whether other
plaintiffs could maintain a cause of action for outing. First, Sipple was unu-
sual in that he claimed a right to privacy despite having been almost com-
pletely open about his homosexuality. His case was an easy one in this
regard; the typical plaintiff in a future case probably will have been far more
protective of his homosexuality and thus more likely to have a colorable
claim that his orientation was a private fact. Second, few plaintiffs' sexual
orientation will be as arguably newsworthy. Given Sipple's status as an ex-
Marine and a national hero, as well as President Ford's alleged failure to
offer a proper response to Sipple, some of the staunchest opponents of outing
might accept the Chronicle's "legitimate public concern" defense as meritori-
ous. Few other plaintiffs, however, will be celebrities by virtue of an act of
physical bravery so blatantly adverse to heterosexist stereotypes, and even
fewer cases will hinge on the political considerations so obviously present
when the actions of the President of the United States are called into
question.

B. BEYOND SIPPLE

Inasmuch as Sipple elaborates on the Restatement test as it relates to dis-


closures of homosexuality, the case is a useful guide. Substantively, however,
it is such an unlikely case that it leaves unresolved all three issues posed by
the Restatement. The real question remains: if Sipple had been a typical
plaintiff-if he had made an effort to keep his homosexuality concealed, and
if his celebrity were of the more conventional variety (such as that of an
entertainer or a politician)--would state courts have let him go to a jury with
a cause of action under the private facts tort? Because the private facts tort
has been used so rarely and with frequently inconsistent results, finding a
definitive answer remains difficult. However, a look at the case law on each
of the three elements of the tort seems to suggest, albeit tentatively, that this
fictionalized Sipple would have about as much luck as the real Sipple did.

1. Private Life

In order to state a cause of action for public disclosure of private facts, the
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

plaintiff must show, of course, that the facts disclosed were indeed private.4 9
Although there is no published case definitively establishing homosexuality
as a private fact, a California court in Diaz v. Oakland Tribune50 allowed
recovery by a transsexual who had taken several precautions to ensure the
secrecy of her sex change operation. 5 Given the socially sensitive nature of
both sex change operations and sexual orientation, the reasoning of this case
suggests that homosexuality can be a private fact when the gay person takes
enough steps to keep his sexual preference private.
Exactly what steps he must take, however, is still unclear. The comment
to the Restatement on this element explains that "there is no liability for
giving further publicity to what the plaintiff himself leaves open to the public
eye."' 52 Furthermore, it describes "sexual relations" as "normally entirely
private matters."'5 3 What was considered private in 1977, however, when the
Restatement was written, may be very different from what is considered pri-
54
vate today.
That the press has learned enough about a subject's gay lifestyle to make
the allegations indicates that the subject left his lifestyle exposed to some
degree. This is true of any alleged private fact-if it were completely private,
the press never would discover it at all. The question, then, is not whether
the plaintiff has exposed the matter in question but, rather, the extent to
which he has exposed it. A reporter will probably base a truthful allegation
of homosexuality either on his own firsthand observation of the subject's be-
havior or on secondhand gossip based on firsthand observation-whether the
root of that gossip is a bystander, a friend or relative of the gay person, or a
current or former partner. Under either circumstance, the plaintiff will have,
at best, an uphill battle proving that his homosexuality was a private fact.
If the allegation is based on the reporter's firsthand observation, the plain-
tiff is almost certain to lose. Surely no better example can be found of a fact
left "open to the public eye" than a fact left open to the eye of a journalist.
In Gill v. HearstPublishingCo., 55 the California Supreme Court rejected the

49. RESTATEMENT (SECOND) OF TORTS 652D (1977).


50. 188 Cal. Rptr. 762 (Cal. Ct. App. 1983).
51. In order to ensure her privacy, the plaintiff: changed her name; made the necessary changes
in her high school records, social security records and driver's license; and tried unsuccessfully to
change the gender designation on her birth certificate. Id. at 765.
52. RESTATEMENT (SECOND) OF TORTS 652D cmt. b (1977).
53. Id.
54. Media coverage of the sex lives of heterosexuals during the last 14 years has been so wide-
spread and well-debated that it should require no documentation. Two recent examples come im-
mediately to mind: the 1987 controversy surrounding the personal life of presidential candidate
Gary Hart, and the 1989 furor stemming from a sexually explicit videotape featuring actor Rob
Lowe. It seems quite possible that neither incident would have received such media attention in
1977.
55. Gill v. Hearst Publishing Co., 253 P.2d 441 (Cal. 1953).
19911 OUTING AND THE PRIVATE FACTS TORT

plaintiff's claim in just such a case, protecting the publication of a photo-


graph of a couple seated in an "affectionate" pose at their public place of
business.5 6 A plaintiff asserting that his sexual orientation is a private fact
might point to Barber v. Time, Inc.,57 a Missouri case in which the court
recognized a cause of action when a magazine published a photograph of a
hospitalized woman with an eating disorder, accompanied by the phrases
58s
"Insatiable-Eater Barber" and "She eats for ten." Admittedly, such a mal-
ady is a sensitive characteristic so pervasive of one's lifestyle, like homosexu-
ality, that it cannot be easily concealed. Given, however, that the plaintiff in
Barber was not making a public display at the time the information was
learned but, instead, was in a hospital and protested the intrusion, Gill is the
case courts are more likely to find relevant.
Alternatively, when the allegation is based on gossip, the plaintiff can
make a stronger claim that he never left his homosexuality open to the public
eye. Existing case law provides little direct help to either side in such a case,
but the plaintiff arguably could find some support for his case in Daily Times
Democrat v. Graham.59 In Graham, the Alabama Supreme Court held that a
photograph of a woman with her dress blown above her waist was actionable
even though she was in a public place, saying the general rule does not apply
when the status one expects to occupy in public is changed without voli-
tion. 6 Certainly this status is changed when a gay person is betrayed to the
media by someone he trusted, and thus, the analysis in Graham suggests that
outing would be actionable. But such an extension of Graham to cases in
which the plaintiff's status is changed not by the forces of nature but by the
words of another would set a dramatic precedent-particularly where the
source is a current or former romantic partner. Because such a ruling would
also limit the partner in discussing his own life with the media, Graham prob-
ably would not apply. While the defendant's case would not be as strong as
when a reporter based his account on firsthand observation, the plaintiff
nonetheless would face difficulties in persuading a court that his homosexual-
ity was private. Neither scenario, then, is very attractive to the potential
plaintiff trying to prove this element of the test.

2. Highly Offensive to a Reasonable Person


The second key element of the private facts test requires the plaintiff to
show that the matter publicized would be highly offensive to a reasonable

56. Id. at 445.


57. 159 S.W.2d 291 (Mo. 1942).
58. Id. at 293.
59. 162 So. 2d 474 (Ala. 1964).
60. Id. at 478.
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

person. 6 ' This definition examines not whether the fact disclosed would be
offensive to a reasonable member of the reading or viewing public, but
whether the publicity itself would be offensive to a reasonable plaintiff. 62 The
relevant comment to the Restatement notes that a person "must expect the
more or less casual observation of his neighbors as to what he does" and may
prevail on this element "only when the publicity given to him is such that a
''
reasonable person would feel justified in feeling seriously aggrieved by it. 63
This prong of the test should hardly be an obstacle for a victim of outing.
Surely no publicity can be more offensive to its subject than a public disclo-
sure of his homosexuality, given the private nature of sexual relations and the
stigma many attach to homosexuality. Nothing in the case law suggests that
outing would be anything less than highly offensive publicity,6 and the
courts' failure to challenge the plaintiff on this prong in Sipple and Diaz fur-
ther supports the notion that a victim of outing would have no problem prov-
65
ing this element of the tort.

3. Legitimate Public Concern


This prong is dubbed the "newsworthiness" defense by some courts and
scholars, 66 stemming from the constitutional protection afforded the publica-
tion of material that is both true and newsworthy. 67 When the subject mat-
ter of the disclosure is of legitimate concern to the public, it is not actionable.
Scholars disagree on how newsworthiness should be defined. Some have
gone so far as to suggest that, because it is the media's responsibility to de-
cide what is newsworthy, anything that is in the news is, by definition, news-
worthy. 68 Such a conclusion, however, would expand the newsworthiness

61. RESTATEMENT (SECOND) OF TORTS 652D (1977).


62. Id. cmt. c.
63. Id.
64. Cases that have discussed the offensiveness prong have applied it in cases unrelated to sexual
privacy. See e.g., Huskey v. National Broadcasting Co., 632 F. Supp. 1282, 1288-89 (N.D. Ill.
1986) (publicity sufficiently offensive when prisoner filmed against his wishes); McCabe v. Village
Voice, 555 F. Supp. 525, 529 (E.D. Pa. 1982) (publication of nude photograph of private individual
ordinarily highly offensive).
65. Concededly, however, neither case is even remotely dispositive of this issue, given that the
court in Sipple had no need to examine this prong and that the court in Diaz applied it with respect
to a transsexual rather than to a gay person.
66. E.g., Sipple, 201 Cal. Rptr. at 669; Zimmerman, supra note 15, at 300.
67. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489 (1975) ("Because the gravamen of
the claimed injury is the publication of information, whether true or not, the dissemination of which
is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly
confront the constitutional freedoms of speech and press.").
68. See, e.g., Harry Kalven, Jr., Privacy in Tort Law- Were Warren and Brandeis Wrong?, 31
LAW & CONTEMP. PROBs. 326, 336 (1966) (asks "whether the claim of privilege is not so overpow-
ering as virtually to swallow the tort"). But see Edward J. Bloustein, The First Amendment and
Privacy: The Supreme Court Justice and the Philosopher,28 RUTGERS L. REV. 41, 57 (1974) (news-
1991] OUTING AND THE PRIVATE FACTS TORT

defense to the point where it would eliminate the private facts tort alto-
gether. 69 For the tort to have any teeth whatsoever, it must provide room for
some judicial review of the media's decisions.
The most elaborate and accepted definition of the newsworthiness defense
was articulated in Virgil v. Time, Inc. :70
In determining what is a matter of legitimate public interest, account must
be taken of the customs and conventions of the community; and in the last
analysis what is proper becomes a matter of the community mores. The
line is to be drawn when the publicity ceases to be the giving of information
to which the public is entitled, and becomes a morbid and sensational pry-
ing into private lives for its own sake, with which a reasonable member7 of
the public, with decent standards, would say that he had no concern. '
If the judge can hold as a matter of law that the publicity does not consti-
tute "morbid and sensational prying," the media defendant will win; if not,
72
newsworthiness will be a question for the jury to decide.
The Supreme Court has defined "community mores" in other contexts as
73
referring to the mores of the local community. Therefore, each jurisdiction
will have its own customs and conventions from which to determine whether
the publication of a person's homosexuality is the type of prying with which
the decent, reasonable citizen has no concern. This will vary dramatically by
locale; the Sipple court suggested that, in California, publication of a person's
homosexuality may, as a matter of law, conform to the community notions of
74
decency.
Even in states with community mores less tolerant of homosexuality, how-
ever, gay plaintiffs face two obstacles. First, as community mores evolve
over time, and homosexuality becomes more socially acceptable, those courts
that currently would find homosexuality shocking to the community notions
of decency may change their tune. 75 Second, the states where the courts are

worthy information is only that information necessary for the public to make decisions of self-
government).
69. See Zimmerman, supra note 15, at 353 (citing the "leave it to the press" model as the reason
for the dearth of successful private facts lawsuits).
70. 527 F.2d 1122 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976).
71. Id. at 1129 (quoting RESTATEMENT (SECOND) OF TORTS 652D (Tent. Draft No. 21,
1975)).
72. Id. at 1130.
73. See, e.g., Miller v. California, 413 U.S. 15, 31 (1973) ("community standards" in obscenity
case interpreted as statewide standards).
74. Sipple, 201 Cal. Rptr. at 670 ("the publication of [Sipple's] homosexual orientation which
had already been widely known ... was not so offensive even at the time of the publication as to
shock the community notions of decency").
75. Of course, as community mores continue to evolve, the need for some gay people to live in
secrecy-and the motivation for some gay activists to "out" other gay people-will lessen as well.
At this time, however, the day when such needs will be negligible seems so distant that to plan a
revision of tort law around it would be premature, to say the least.
426 THE GEORGETOWN LAW JOURNAL [Vol. 80:413

least likely to find for the media defendant as a matter of law-i.e., the states
that are the most intolerant of homosexuality and where publicity regarding
one's sexual orientation can be most damaging-are also the least likely to
provide juries that will be sympathetic to the gay plaintiff. Thus, getting an
outing case to a jury in such a state may be of little comfort to the plaintiff.

4. An Uphill Battle for Plaintiffs


Breaking down the private facts tort into its three key elements suggests
that outing would rarely, if ever, be actionable under the tort. Although
outing almost certainly is highly offensive publicity, many plaintiffs will have
difficulty proving their sexual orientation was a private fact. And those
plaintiffs who overcome that hurdle are likely to be stopped by the newswor-
thiness defense. Some states may already recognize homosexuality as inof-
fensive to the community mores as a matter of law, and those states that
would not do so now are destined to do so eventually. In the meantime, their
failure to declare an immediate victory for the defendant will only require the
plaintiff to prove his case to a jury of his peers in a state where his peers tend
toward intolerance of homosexuality. Under these rules, only the most pri-
vate of gay plaintiffs, with the most limited interaction with public life, with
the most uncharacteristic of juries in the most socially conservative of states,
is likely to prevail.

III. MODIFYING THE RESTATEMENT TEST

At first blush, it seems logical that any attempt by the law to limit the
media's invasion of the privacy of its subjects would prohibit delving into
those subjects' sexual preferences. The comments to the Restatement specifi-
cally mention sexual relations in their discussion of the private facts tort,
76
implying that this is one area unquestionably within the scope of the tort.
In addition, when Warren and Brandeis complained about the growing
spread of gossip, they listed gossip about sexual matters as a specific example
of their concern: "To satisfy a prurient taste the details of sexual relations are
spread broadcast in the columns of the daily papers."' 77 The privacy tort
Warren and Brandeis envisioned surely would have encompassed such a bla-
tant privacy invasion as outing.
Yet the private facts tort as interpreted today might well offer no protec-
tion in such a case. How can it be that a tort conceived to combat the mass
dissemination of idle gossip could now fail to protect some of the most se-
verely wounded victims of the most prurient form of gossip? Two sets of

76. RESTATEMENT (SECOND) OF TORTS 652D cmt. b (1977) ("Sexual relations ... are nor-
mally entirely private matters ....").
77. Warren & Brandeis, supra note 18, at 196.
1991] OUTING AND THE PRIVATE FACTS TORT

reasons explain this development. One set of reasons entails constitutional


and social considerations that simply cannot be circumvented. These consid-
erations, which are discussed more fully in Part IV, ultimately justify power-
ful limitations on the application of the private facts tort to outing cases. The
other set of reasons, which could be remedied relatively easily, involves the
tort itself. The current interpretation of the tort, as articulated in the Re-
statement, places an unnecessary burden on private facts plaintiffs in general
and a virtually insurmountable burden on outing plaintiffs in particular; two
requirements seem to contradict public policy as well. Even though the con-
siderations to be discussed in Part IV necessarily remove the private facts
tort as an option for some victims of outing, the tort would be more fair and
more accessible to plaintiffs if courts made two changes in their formulation
of the test.

A. THE "PRIVATE LIFE" PRONG

The first problem involves the "private life" prong of the test, in which the
plaintiff is required to prove that the matter disclosed was private and not
public. Typically, the inquiry here is phrased as whether the matter in ques-
'7 8 This
tion was one "the plaintiff himself leaves open to the public eye."
inquiry makes two assumptions. First, it assumes the plaintiff would be rea-
sonable not to leave the matter open to the public eye. Second, the inquiry
assumes an interest in encouraging the plaintiff to take every possible mea-
sure to prevent the matter from becoming public (or, at the very least, not to
facilitate publicity of the matter). These assumptions, however, are not true
for all types of disclosures, and disclosures of homosexuality provide a per-
fect example.
First, no gay plaintiff can be expected to leave his sexual orientation com-
pletely, or even substantially, unexposed to the public eye. The process of
seeking out romantic partners, whether gay or heterosexual, necessarily in-
volves revealing one's preference to strangers before learning how well they
can be trusted. Anyone with a romantic past, no matter what his sexual
preference, has "extraneous" people in his life who know that preference, be
they former partners, prospective partners, or other would-be participants in
relationships that never materialized. Furthermore, homosexuality should
be recognized less as a private fact than as a lifestyle; it will inevitably find its
way into the public eye. A person's homosexuality may influence not only
the companions with whom he is seen publicly, but also where he lives,
which restaurants or bars he frequents, 79 and what he does with his leisure

78. RESTATEMENT (SECOND) OF TORTS 652D cmt. b (1977), see supra notes 49-52 and accom-
panying text.
79. The recent outing of a high-ranking Pentagon official was based primarily on allegations that
he had been a regular customer at a predominantly gay Washington bar. Henry, supra note 6, at 17.
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

time. All of these matters are left open to the public eye, and all are practi-
cally unavoidable. Being gay surely does not require one to boast to the press
about his sexual orientation, or even to be the vocal gay rights activist that
Oliver Sipple was. But it presumably does require enough exposure to the
public that any reporter with the diligence to track a gay person's behavior
for a few days probably could unearth some convincing evidence of his
homosexuality. 80
Second, to the extent that the law has articulated a public policy against
bigotry and in favor of tolerance of minority groups, it has a particularly
strong interest in encouraging gay people to live their lives openly. At the
very least, that public policy seeks to avoid cornering gay people into living
secret lives. The "open to the public eye" formulation, however, potentially
has this very effect. Under the current approach, when a gay person at-
tempts to tackle the stigma attached to homosexuality by living a normal life
and interacting in public-without going so far as to become openly gay-he
thereby decreases his chances of winning a potential private facts lawsuit,
because he has strengthened the potential media defendant's assertion that
his homosexuality was not a private fact. In other words, the more steps a
secretly gay person takes to overcome the social barriers facing gay people,
the less likely he is to receive any sympathy from the law if the media reveals
his sexual orientation to a wider audience.
Courts have protected privacy interests in the context of the Fourth
Amendment's prohibition on unreasonable searches and seizures by holding
that protection requires only a reasonable expectation of privacy in the area
to be searched."' Adoption of a reasonableness standard in the private facts
context would be preferable to the current "open to the public eye" phraseol-
ogy. In applying this standard in a private facts evaluation, courts should
ask: Based on the way the plaintiff lived his life with respect to the matter
disclosed, would a reasonable person in his position expect the matter to be
protected from publicity? This inquiry avoids the two shaky assumptions
implicit in the existing approach. If the matter is one, such as homosexual-
ity, that no reasonable person can be expected to conceal completely, the
"reasonable expectation of privacy" standard still would protect the plaintiff
by allowing him "breathing room" to live a normal life. Similarly, this stan-
dard would not reward the gay person who goes to extreme lengths to stay

80. The extent to which sexual orientation dictates one's lifestyle is the main distinction between
outing and the public disclosure of the identities of rape victims, another currently controversial
issue in which First Amendment values compete with individual privacy. See Barbara Kantrowitz,
Naming Names, NEWSWEEK, Apr. 29, 1991, at 26, 31 (quoting a New York University professor as
likening well-publicized Kennedy rape case, in which several publications disclosed the victim's
name, to outing).
81. See generally Katz v. United States, 389 U.S. 347 (1967) (discussing "reasonable expectation
of privacy" standard in Fourth Amendment context).
1991] OUTING AND THE PRIVATE FACTS TORT

out of the public eye, because that person would receive no more protection
than the gay person who lives his life reasonably. He could be seen dining in
public with same-sex companions and visiting gay bars without risking a
court determination that he has waived his right to privacy, because these are
activities that a reasonable person would not expect to be publicized.
This standard, however, would not be unduly restrictive on the press,
which would remain free to report and comment on anything the individual
does when any' expectation of protection is unreasonable. Bringing a same-
sex date to a media event, for example, would remain unprotected. The "rea-
sonable expectation of privacy" standard thus would continue to give the
press considerable leeway to delve into the private lives of its subjects with-
out depriving those subjects of their ability to live normal lives.

B. THE "COMMUNITY MORES" ASPECT OF THE NEWSWORTHINESS


DEFENSE

The second flaw in the current test involves the "legitimate public con-
cern" prong-that is, the newsworthiness defense. Under the approach
adopted in Virgil, newsworthiness is a question of whether the "community
mores" consider the publicity in question to be "the giving of information to
which the public is entitled" or mere "morbid and sensational prying into
82
private lives for its own sake ....
,, In other words, the judge and jury must
determine whether the matter disclosed is one that shocks the community
notions of decency.8 3 If it is not, then the plaintiff cannot win, no matter
how egregious the intrusion into his private life.
The problem with this approach is that not every unwarranted and damag-
ing invasion of a person's privacy unearths knowledge that will offend the
community mores; again, homosexuality is an example. In some communi-
ties, homosexuality no longer is shocking or offensive to the community as a
whole; Sipple suggests that California, or at least San Francisco, may be one
of these communities. But a person who is exposed as gay against his will
still may suffer very real damages to career and social standing, particularly
when that person makes his living on the public stage.8 4 Additionally, the
"community mores" approach carries problematic policy implications simi-
lar to those posed by the "private life" prong: as the gay rights movement
gradually succeeds in winning acceptance for the gay community, it is penal-
ized by a corresponding decline in its individual members' ability to claim
that homosexuality offends the "community mores" and maintain their pri-

82. Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975), cert. denied, 425 U.S. 998 (1976).
83. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665, 669 (Cal. Ct. App. 1984).
84. See supra note 12 and accompanying text.
ITHE GEORGETOWN LAW JOURNAL [Vol. 80:413

vacy if they so choose. This penalty is a disincentive for the gay rights
movement.
Courts should make the newsworthiness defense more equitable by abol-
ishing the "community mores" approach as an absolute test for determining
newsworthiness. Instead, the courts should use this approach as a threshold
inquiry: if the matter disclosed is one the community mores would consider
to be shocking or sensational and of no legitimate value to the public, then it
should be deemed non-newsworthy. If not, then the courts should balance
the public's legitimate interest in the material against the two other elements
of the tort: the extent to which the matter disclosed was private, and the
offensiveness of the publicity to the reasonable plaintiff.8 5 Such a balancing
test would give greater weight to the offensiveness of the matter from the
point of view of the plaintiff,as opposed to the point of view of the public,
thereby preventing the media defendant from escaping liability for a severe
and unjustified invasion of the plaintiff's privacy merely because the matter
disclosed did not shock the community. This test would not impermissibly
compromise the media's right to disseminate newsworthy information; it
merely would acknowledge that newsworthiness is not a black-and-white de-
termination, balancing the public's right to know with the subject's right to
privacy.
An improved application of the private facts tort, then, would proceed as
follows: The plaintiff would be required to show in his prima facie case that
(1) the defendant publicly disclosed a matter in which the plaintiff had a
reasonable expectation of privacy, and (2) the publicity would be highly of-
fensive to a reasonable person. The defendant then would be required to
overcome the prima facie case by showing that (1) the community mores
would not be shocked or offended by the disclosure of the matter in question,
and (2) the legitimacy of the public's interest in the matter justifies the sever-
ity of the invasion as proven in the prima facie case.

IV. THE PRACTICAL IMPLICATIONS OF A MODIFIED TEST

If the private facts test were modified as suggested in Part III, gay people
would have more freedom in living their lives without fear of unexpected
media intrusions. In the event of an intrusion, gay plaintiffs would be more
likely to succeed in holding the media defendant liable for public disclosure
of private facts. The tort no longer would provide disincentives for gay peo-
ple to frequent public places or seek greater public acceptance within a cho-

85. One court has followed a similar approach, adopting a three-part newsworthiness test balanc-
ing "the social value of the facts published, the depth of the article's intrusion into ostensibly private
affairs, and the extent to which the party voluntarily acceded to a position of public notoriety."
Kapellas v. Kofman, 459 P.2d 912, 922 (Cal. 1969). This test was deemphasized in Sipple, however,
in favor of the "community mores" standard. Sipple, 201 Cal. Rptr. at 670.
1991] OUTING AND THE PRIVATE FACTS TORT

sen group. It would both help gay plaintiffs build a prima facie case and
create a more difficult burden for media defendants to bear in overcoming the
prima facie case. In sum, the modifications would increase the practical fea-
sibility of using the tort to state a cause of action for outing when the plaintiff
is not a public figure.
The flip side, however, is that many, if not most, public figures probably
would remain unable to state a cause of action for outing. Even though they
might have an easier time building their prima facie case and overcoming the
"community mores" hurdle, they still would have to show that the newswor-
thiness of their homosexuality did not justify the public disclosure of it. In
an age dominated by television and the movies, many people are of such
interest to the public that any information about them will be so newsworthy
as to justify its disclosure. While some scholars have suggested that news-
worthiness relates only to the information the public needs to make choices
in governing itself,8 6 the value this country places on information about ce-
lebrities was expressed by one court more than thirty years ago in Jenkins v.
Dell Publishing Co. :87 "Few newspapers or newsmagazines would long sur-
vive if they did not publish a substantial amount of news on the basis of
88
entertainment value of one kind or another.1
Under either view, national politicians would be fair game. Under the Jen-
kins view, though, certainly the most famous of entertainers and other public
figures, at a minimum, would have to be included as possessing the highest
degree of newsworthiness.8 9 Given that the most public of figures are also,
by definition, the most attractive targets for a practice such as outing, this
application of the newsworthiness defense admittedly may render the
changes proposed in Part III irrelevant to the majority of outing cases be-
cause for many outing victims, the newsworthiness of the disclosure will

86. See, e.g., Bloustein, supra note 68, at 57 (media "should not determine the extent of the
people's right to know about the lives of their leaders in the interest of exercising their governing
control over them").
87. 251 F.2d 447, 451 (3d Cir.), cert. denied, 357 U.S. 921 (1958).
88. Id. at 451.
89. Whether a figure is too "public" to be entitled to protection in light of the newsworthiness
defense would depend on whether his celebrity was so great as to make him a public figure for every
purpose. While courts ultimately should be left to determine which outing victims fall into which
category, perhaps by balancing the magnitude of the plaintiff's celebrity against the extent of the
intrusion, reasonably predictable guidelines could be developed. For example, President Bush,
Michael Jordan, and Madonna almost certainly would be among those figures who are so "public"
that the newsworthiness defense would prevent them from receiving any protection whatsoever. In
contrast, the "semipublic" category of celebrities who could be entitled to some protection might
include two categories of people who are well-known but not so well-known as to transcend their
field: lesser-known figures in high-profile fields (e.g., a Congressman, a professional basketball
player who is not an all-star, or an actor who regularly appears in supporting roles), and highly
prominent figures in small communities (e.g., the mayor of a mid-sized city, the dean of a college, or
a prominent local business leader).
THE GEORGETOWN LAW JOURNAL [Vol. 80:413

clearly outweigh the severity of the privacy invasion. Constitutional and so-
cial considerations, however, suggest that such an outcome, while less than
reassuring to gay plaintiffs, would be the only permissible outcome where
truly public figures are involved.
First, this limited application of the tort may be constitutionally man-
dated.90 The Supreme Court has never ruled on the constitutionality of the
private facts tort, sidestepping the issue in its only opportunity in favor of a
more narrow holding. In Cox Broadcasting Corp. v. Cohn,9 1 the Court de-
clined to hold that the tort itself was unconstitutional but held that it may
not be constitutionally applied to information obtained from public court
documents. 92 In several libel cases, the Court has justified its imposition of a
greater burden on plaintiffs who are public figures than on private figures
with strong language to the effect that public figures voluntarily elicit much
of the attention they receive. 93 One scholar has suggested that Cox Broad-
casting, read in the context of the Court's other First Amendment cases, indi-
cates that the private facts tort may be unconstitutional. 94 While such a
position is perhaps extreme, these cases probably do signify a constitutional
95
ban on the private facts tort as applied to public figures.
Regardless of how the First Amendment is interpreted, however, allowing
public discussion of the homosexuality of public figures does serve a legiti-
mate function: the facilitation of debate about an important issue. Many gay
public figures' fear of becoming victims of outing derives from their fear of
becoming casualties of the prejudice many Americans continue to harbor
against gay people, prejudice that may take the form of both ostracism from
social groups and damage to careers. The very presence of this prejudice,
however, makes homosexuality a valuable subject of media coverage. While
the public's access to knowledge about the sex lives of celebrities is, as a
general proposition, of questionable utility, our ability to focus on particular
public figures in thinking about and debating society's treatment of gay peo-
ple is arguably of great utility. The identification of gay public figures takes
the debate out of the abstract and onto a level with which the general public
can identify. Surely publicity that serves this purpose is sufficiently news-
worthy to warrant protection under state law, if not the Constitution.

90. See U.S. CONST. amend. I (proscribing any law "abridging the freedom... of the press").
91. 420 U.S. 469 (1975).
92. Id. at 496.
93. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) ("Some occupy positions of
such persuasive power and influence that they are deemed public figures for all purposes. More
commonly, those classed as public figures have thrust themselves to the forefront of particular pub-
lic controversies in order to influence the resolution of the issues involved. In either event, they
invite attention and comment.").
94. Zimmerman, supra note 15, at 306.
95. See Cox Broadcasting, 420 U.S. at 490 ("the defense of truth is constitutionally required
where the subject of the publication is a public official or public figure").
1991] OUTING AND THE PRIVATE FACTS TORT

CONCLUSION

When the media discloses the sexual orientation of gay people against their
will, two competing considerations come into play: the gay person's privacy
interest in his lifestyle and the constitutional guarantee of a free press. The
gay person is justified in his anger at being stripped of his right to choose
whether to disclose his homosexuality to the public, and the law is justified in
its reluctance to restrain the publication of truthful material. This reluctance
currently manifests itself, however, in a private facts tort so insensitive to the
interests of gay people that it probably would offer no protection against so
egregious an intrusion as outing.
While the strong public interest in the private lives of the best-known ce-
lebrities rightfully would prevent them from taking advantage of even the
most drastically amended private facts tort, a modified tort would provide
protection to private and semi-public figures. The modified tort would allevi-
ate some of the tactical difficulties and public policy conflicts contained in the
current tort by lessening the plaintiff's burden of proving that the matter
disclosed was private and increasing the defendant's burden of showing that
the matter was sufficiently newsworthy to justify the disclosure.
As for those public figures who are too celebrated to seek legal redress
against members of the press that engage in outing, perhaps the best advice
one can offer is prudence. Warren and Brandeis wrote in an era in which
seeing one's own name in the newspaper was often considered cause for em-
barrassment; a century later, we live in an era in which seeing one's own face
broadcast electronically into millions of homes is often considered cause for
excitement. Such a heightened sense of celebrity carries with it a heightened
sense of responsibility, including the responsibility of making intelligent deci-
sions about how much personal information one shares and with whom. Be-
cause the law affords so little protection to public figures, it is an unfortunate
but necessary consequence that those who choose poorly risk such grave
consequences.

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