Laws of Image

Privacy and Publicity in America

Samantha Barbas

• Publisher: Stanford Law Books
• Year: 2015
• ISBN:
  9780804796712
• Edition: 1
• Topic: Jura
• Subtopic: Rechtsgeschichte

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.

CHAPTER 1

Image and Reputation at the Turn of the Century

Cedarville is a town near Plymouth, on Cape Cod. In the 1870s, it was a “straggling row of houses,” where fishing and cranberry-picking were the primary means of livelihood. The town’s schools were taught by educated, upper-class women who came from Boston, usually for a year or two. Around 1875, a young woman named Sarah Pratt McLean arrived in town. She took a teaching position and found herself amidst surroundings that “were full of strangeness. . . . The idioms of the people, their customs and traditions, impressed her with their novelty.” When she left after five months, she began to jot down her memories. Eventually she had enough for a book, issued as Cape Cod Folks in 1881.¹

The book purported to be an autobiography that described McLean’s real-life adventures—in the classroom, living away from home, and becoming “the spectator of domestic squalls and village quarrels.” She “wins admirers and lovers, and she actually gets one proposal.” Although McLean changed the name of the town, she used the real names of the townspeople.²

Before long, the residents of Cedarville got hold of Cape Cod Folks. As they read, they recognized their “locality, their houses and their households, their social life and school system, and found even the indigenous modes of courtship graphically described.”³ When they realized that many of the characters were called by their actual names, outrage ensued. The result was a dramatic, highly publicized lawsuit. Dozens of characters in the book—nearly the whole town—sued the publisher for libel.

The late nineteenth century saw the significant expansion of libel law and litigation. Libel suits, in the words of one commentator, had become a “ruling passion among citizens.”⁴ In an important moment in the history of the law and the modern history of the self, both famous and ordinary people were bringing suit over false, embarrassing, and unflattering depictions in print. Once seen as something to be negotiated primarily through social interactions, in the rough-and-tumble of everyday life, reputations and public images were increasingly becoming legal entities, to be controlled and maintained through the use of law and legal institutions.

. . .

The story starts in the last two decades of the 1800s, an era that saw the flourishing of the printed word in the United States. Urbanization, an expanding audience for publications, and advances in publishing technology led to a massive volume of printed material. Paperbacks and other varieties of cheap books began to appear on the market. Mass-circulation magazines such as the Ladies’ Home Journal debuted and became popular.⁵ Total national circulation of monthly magazines rose from 18 million in 1890 to 64 million in 1905—nearly four magazines per American household.⁶ Newspaper readership increased 400 percent between 1870 and 1900, and the number of newspapers doubled.⁷ Perhaps more than any form of print, the daily newspaper became a consuming passion and the focal point of popular culture and social life.⁸

At the beginning of the century, the newspaper had been largely a local, small-scale affair. Most newspapers were “mercantile sheets” or political journals, directed towards educated men.⁹ By the late 1800s, newspaper publishing had become a big business, aimed at a mass market. Major news publishing chains developed, including the Hearst, Scripps, and Pulitzer empires.¹⁰ Urban newspapers increased in size and published up to six or seven editions a day. There was also a transformation in newspaper content. In the early 1800s, the typical subject of press coverage had been the activities of “public figures”: politicians, public officials, captains of industry. Publishers eventually realized that “human interest” stories—“chatty little reports of tragic or comic incidents in the lives of the people”—attracted more readers than dry copy about the comings and goings of officials and statesmen. Crimes, love affairs, divorces, holidays, social outings, illnesses, births, deaths: these matters of ordinary existence were scooped out of neighborhoods by aggressive “roving reporters” and fed to a curious public.¹¹

Personal lives, of both the poor and the rich, were dramatized and put on display. Newspapers published facts about ordinary people, obscure private citizens “with no claim to public mention.”¹² “Here was a young, handsome woman . . . suing a rich, fat, candy-making husband in Brooklyn for divorce,” the novelist Theodore Dreiser wrote about a New York newspaper in the 1890s. A story about the vacationing of the Vanderbilts was juxtaposed to “a long, bright column . . . of the doings in the theatrical world,” and “an interesting shooting affray on the mountains of Kentucky.”¹³ “The interest in other people’s affairs in this country is almost measureless,” observed The Outlook magazine in 1896. “The morning and evening papers make us feel as if we belonged to a great village and . . . as if our chief interest lay in what is going on at the other end of the street.”¹⁴

In the 1890s, publishers took this to new heights with sensationalistic “yellow” journalism, rife with prominent illustrations, large type, and detailed coverage of murders and sexual affairs. Headlines were written in a breathless tone:

A Regular Roarer. . . . Gone in the gloaming. A leading business man missing from his familiar haunts. He loved another man’s wife too well. The veil lifted from a most remarkable condition of affairs. ’Tis the talk of the town. The people wonder how such naughtiness can exist. Overfond of wedding. A dapper dude with one wife in Pottsville, and another in Philadelphia. He has fallen into the consomme. In consequence a term in prison stared him in the face, holding the mirror up to nature. For sale by newsboys on the street. Only a nickel a copy. Don’t miss it.¹⁵

Sometimes these accounts were true. Often they were faked. Publishers had few qualms about running stories that were exaggerated, distorted, unverified, or even wholly fabricated. The concept of journalistic ethics had not yet come into being.

With its dramatic stories about the secretly sensational lives of average people, the press tapped into a rich vein of popular interest and curiosity. Particularly in the cities, where people lived behind closed doors and were often strangers to each other, readers were interested in news about what their neighbors did and how the other classes lived. Information about the way ordinary people dressed, ate, worked, loved, and spent their leisure time offered newcomers to the city, both migrants from rural areas and foreign immigrants, critical details about the lifestyles and cultures of their new environment.¹⁶ The popular press also served as a kind of connective tissue in a populace that was becoming diverse and heterogeneous. Although many of these publications were aimed at workers, their readership was not limited to a working-class audience.¹⁷ Writes critic Janna Malamud Smith, “Stories [in the press] create[d] a shared culture, and their task was partly to replace the informal gossip of village life; it was impossible to whisper fast enough to pass important gossip to a whole city and few were inclined to whisper to strangers.”¹⁸

Social elites, steeped in the virtues of modesty, gentility, and reticence, decried this effusive, sensationalistic, lowbrow filth. Newspapers were a “sewer” in which “the sins, the crimes, the misfortunes, and the weakness of our poor humanity” were chronicled, wrote critic Conde Benoist Pallen in 1886. “Here, spiced and fetid with all the filth of a degraded morale and an infamous taste . . . is served up the record of . . . murders, rapes, hangings . . . and all other abominations perpetrated by perverted humanity.”¹⁹ Particularly despised was the practice of bringing “unimportant persons to public notice.”²⁰ Men and women who had done nothing but mind their own business found their reputations tarnished, sometimes irreparably, by untruthful and scandalous newspaper stories. “Unscrupulous newspapers, bent on entertaining their readers at any cost to happiness and truth,” visited “terrible misery on inoffensive people,” observed an 1889 article titled “Newspaper Brutality.”²¹ “Private reputations” were being destroyed “in order to make a salable and spicy paragraph.”²²

A man whose clandestine marriage was exposed in a gossip column, “elaborated . . . with sensational details,” was so distraught by “the sudden gaze of a whole community” that he committed suicide.²³ Women who were falsely accused of indecent behavior and consorting with men lost opportunities for marriage and were shunned by others. In one incident that became the basis of a libel lawsuit, a Brooklyn newspaper, the New York Recorder, published an article about a woman named Ida Gates. According to the paper, she was a “dashing blonde, twenty years old, and . . . a concert-hall singer and dancer at Coney Island.” Coney Island was regarded as a place of “evil report”: “a resort for disorderly and disreputable persons.” The article alleged that Gates had secretly married a seventy-five-year-old man who was “fond of pretty women.” In reality, Ida Gates was a thirty-five-year-old schoolteacher who had recently moved from rural New York and “had never been on the stage in any capacity.”²⁴ The publication was totally false, and her reputation was ruined. “It is high time for the American people to recognize that. . . . reputation is a valued possession,” exhorted one writer. To rob a man of his reputation was “a crime against the community as well as against the individual,” and it was “the duty of the community to punish it.”²⁵

Some critics proposed publicly shaming publishers as a means to crack down on the sensationalistic press. There were calls for newspaper boycotts.²⁶ In the 1880s and 1890s, several states proposed and passed laws providing for civil liability or criminal punishment for scandalous press content.²⁷ There was also a turn to the tort of libel. In unprecedented numbers, the victims of press gossip and sensationalism began to seek refuge in libel litigation.

. . .

For centuries, the twin torts of defamation—libel and slander—had protected reputations against scandalous falsehoods.²⁸ The tort of libel applies to defamatory material in print; and slander, spoken defamation. Libel and slander are civil actions between private parties for money damages. Although “malicious libel”—a libel directed against an individual with an intent to “breach the peace”—was a crime in...