Britain’s royal family has obtained an injunction against the French magazine Closer to prevent it from publishing topless photographs of the Duchess of Cambridge, Kate Middleton. “The case would likely come out differently if it were brought in the United States,” says Neil Richards, JD, professor of law at Washington University in St. Louis.
Richards, an internationally recognized expert in privacy and free speech law who hails from England, explains that English and European courts have been very aggressive in stopping media from publishing pictures delving into the sex lives of celebrities.
In the United States, the law is very different:
“In America, the law recognizes that our privacy can be violated when newspapers publish true, but unflattering or embarrassing things about us,” he says. “But courts are reluctant to enforce such rules against the press because of First Amendment concerns.
“Publication of nude photographs by the press can be in very poor taste and can cause real emotional harm. But American courts have by and large decided that the publication of the truth about celebrities is protected free speech.
“Giving courts the power to censor the newspapers gives them a very dangerous power. American free speech law has a strong tradition — instituted by judges themselves — that we should use such powers only in very limited cases involving serious matters of life and death.
“When we’re talking about the truth about public figures, we should be very careful before we allow judges to say that ‘This is something the public has no right to know.’ This is the case even when you have newspapers acting in ways that most people think is shockingly bad taste.”
Richards notes that changes in technology have made injunctions against the press less effective at containing facts and photographs.
“In a world of global communications and Twitter, even a series of injunctions against the press wouldn’t likely be able to stop the pictures from circulating,” he says.
“This was the case in Britain recently when injunctions could not stop the fact that a famous Manchester United footballer was engaging in an extramarital affair from being made public.
“Under American law, a court would most likely allow publication of the pictures of the Duchess on First Amendment grounds since they were taken from a public place and involve a celebrity who makes numerous public appearances and is likely to one day be the queen.”
Richards says the English press has both some of the best — and worst — newspapers in the world, but when it comes to freedom of the press, all newspapers are entitled to it, no matter how much others might disagree with their politics or their editorial decisions about what is newsworthy.
“Ultimately, when it comes to important civil liberties, we have to trust that they are exercised responsibly rather than prohibiting their exercise in court,” he says.
“A civil liberty that can be easily prevented is not really a civil liberty at all. But at the same time, I think we all have the responsibility and free speech right to criticize newspapers when they do something that may be legal but is irresponsible or unethical.
“My personal views are that the publication of these photographs is a waste of time, and newspapers who run pictures like these instead of stories that matter should be ashamed of themselves. But under U.S. law, at least, just as I have the right to criticize them, the newspapers probably have the right to print these sorts of pictures.”