Forced out of the Closet: Sexual Orientation and the Legal Dilemma of "Outing"
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University of Miami Law Review Volume 46 Number 3 Symposium: Gender and Law Article 7 1-1-1992 Forced out of the Closet: Sexual Orientation and the Legal Dilemma of "Outing" David H. Pollack Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Civil Rights and Discrimination Commons, and the Jurisprudence Commons Recommended Citation David H. Pollack, Forced out of the Closet: Sexual Orientation and the Legal Dilemma of "Outing", 46 U. Miami L. Rev. 711 (1992) Available at: https://repository.law.miami.edu/umlr/vol46/iss3/7 This Comment is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. COMMENTS Forced out of the Closet: Sexual Orientation and the Legal Dilemma of "Outing" I. INTRODUCTION .......................................................... 711 II. OUTING, SEXUALITY, AND PRIVACY: A SOCIOLOGICAL OVERVIEW ......... 715 A. The Origins of Outing .............................................. 715 B. Homosexuality and Privacy: Social Attitudes .......................... 716 III. THE ETHICS OF OUTING .................................................. 719 IV. OUTING AND COMMON LAW PRIVACY ................................... 722 A . Invasion of Privacy ................................................ 723 B. Is Sex a Private Fact? .............................................. 724 C. Is Outing Highly Offensive to a Reasonable Person of Ordinary Sensibilities? ...................................................... 731 D. The "Newsworthiness" Privilege...................................... 734 1. HOMOSEXUALITY AND NEWSWORTHINESS ......................... 735 2. THE HOMOSEXUALITY OF PUBLIC FIGURES/PUBLIC OFFICIALS ........ 738 3. THE HOMOSEXUALITY OF INVOLUNTARY PUBLIC FIGURES ........... 741 4. THE HOMOSEXUALITY OF PRIVATE FIGURES ....................... 743 E. The Limits of the Newsworthiness Privilege ............................ 746 V. CONCLUSION .............................................................. 749 The common law has always recognized a man's house as his cas- tle, impregnable, often, even to its own officers engaged in the exe- cution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?' I. INTRODUCTION The battle between the public's right to information2 and the individual's right to privacy 3 is as old as the First Amendment itself. Judges for centuries have struggled to balance the right of the individ- ual to be free from unwarranted intrusion into his private life4 against the media's need to "serve the public interest in news."' The task has 1. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 218 (1890). 2. Whether the public has a constitutional "right to know" under the First Amendment is a matter of some debate. See Virgil v. Time, Inc., 527 F.2d 1122, 1128 (9th Cir. 1975). 3. For an excellent discussion of the origins of the common law right to privacy, see Warren & Brandeis, supra note 1. 4. Id. at 195. 5. Time, Inc. v. Hill, 385 U.S. 374, 383 (1967) (quoting Harry J. Kalven, Jr., Privacy in UNIVERSITY OF MIAMI LAW REVIEW [Vol. 46:711 not always been easy. Champions of free speech have accused pri- vacy-oriented judges of eroding the spirit, as well as the letter, of the First Amendment.6 Conversely, those who favor a broader notion of privacy maintain that "the right to privacy is necessary for the auton- omy of individuals, even at the cost of some flawed decisions on the part of ignorant others."' The paradoxical and often inconsistent atti- tudes many Americans hold regarding the government's role in regu- lating the free expression of its citizens exacerbates this situation.' While most Americans agree that "debate on public issues should be uninhibited [and] robust,"9 the majority also believes that the individ- ual must have some space that is off limits to others if our society is to be "a fit [place] in which people will gladly live."10 Nowhere has this attempt to "harmonize individual rights and community interests"'" been more heated than in the homosexual community. Largely because of Biblical injunctions surrounding sod- Tort Law-Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326, 335-36 (1966). 6. See, e.g., Alan M. Dershowitz, Should Rape Victims Be Named?, MIAMI HERALD, Apr. 21, 1991, at Cl. 7. KIM L. SCHEPPELE, LEGAL SECRETS 182 (1988); see also Susan Estrich, Should Rape Victims Be Named?, MIAMI HERALD, Apr. 21, 1991, at Cl. 8. In a survey of 1,500 Americans conducted by the Thomas Jefferson Center for the Protection of Free Expression, 90% of those surveyed said they felt the government has no right to tell people what to do or say, while only 65% of that same group felt that the press should be allowed to print whatever it chooses. Shrona Foreman, Survey Finds Confusion About Free Expression, MIAMI HERALD, Sept. 16, 1990, at 12A. Responses to a recent Miami Herald survey on the subject of whether to print the names of clients of an alleged prostitute revealed similar tension. One reader wrote: "If you publish the names of these men ... you also expose their mothers, fathers, and children and, yes, indeed, their entire families." Another reader said: "One doesn't have to be college educated to realize that too many of our business and political leaders and citizens are hypocrites.... [I]t is the duty of the news media ... to expose all who deceive us, for if you don't, who will?" Doug Clifton, I Asked For Your Thoughts. You Gave Them, MIAMI HERALD, Sept. 8, 1991, at 4C. Not all countries, however, agree with the assumption that the private lives of public figures are fair game for media coverage. In France, the private lives of public figures are considered personal affairs. See Sharon Waxman, Interview Linking Actor to Rape Angers French, MIAMI HERALD, April 2, 1991, at 3A. 9. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1963). 10. SCHEPPELE, supra note 7, at 182. A recent survey of editors and news directors reported a 45% increase in reader concern with the media's effect on personal privacy in the last five years. SOCIETY OF PROFESSIONAL JOURNALISTS, PRIVACY AND THE PRESS: How THEY Co-EXIST 1 (1990). Surprisingly, the media appears sympathetic to the public's position. Journalists today are more likely to place an individual's right to privacy above the public's right to know, especially when it comes to reporting crimes. Id. at 3. Some newspapers, in fact, have even begun surveying their readers to determine whether information about the private lives of individuals is "newsworthy." See Doug Clifton, Should We Print Names of Accused Prostitute's Clients?, MIAMI HERALD, Sept. 1, 1991, at 4C. 11. Time, Inc. v. Hill, 385 U.S. 374, 383 (1967). 1992] LEGAL DILEMMA OF "OUTING" omy,' 2 and society's general reticence toward matters concerning sex- uality,'" most homosexuals have chosen to keep their sexual orientation private.' 4 Those gay people who have made their sexual orientation known have paid a price, often sacrificing their careers,' 5 their families, 16 and even their lives 17 in the process. In the face of Acquired Immune Deficiency Syndrome ("AIDS") and changing attitudes toward homosexuality, however, the so-called "conspiracy of silence" appears to be ending. A number of prominent public figures recently have come forward and announced their homo- sexuality in the media,' and several gay rights groups, in unrelated 12. MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 38 (1980). The specific passage, cited in Leviticus 18:22, reads: "Thou Shalt not lie with mankind, as with womankind; it is abomination." 13. FOUCAULT, supra note 12, at 3. In a somewhat alarming report released recently by the Kinsey Institute, 55% of Americans surveyed were unable to answer questions which tested basic sexual knowledge. Roughly one-quarter knew that the typical American first has intercourse at age 16 to 17; about the same number correctly estimated that 30-40% of married men have had an extramarital affair. Respondents unanimously reported dissatisfaction with their ability to communicate honestly and openly about sexual matters to their mates. Don Oldenburg, Sexually Confused? Well, So Are Some Experts .. , WASH. POST, Oct. 12, 1990, at B5. 14. In an interview with the Senate Judiciary Committee in August, 1986, Jeffrey W. Levi, Executive Director of the National Gay and Lesbian Task Force, estimated that his organization had about 10,000 members. Yet in research conducted by Alfred Kinsey and his colleagues at the Institute for Sex research between 1938 and 1963, the Institute found that roughly one in three men and one in five women have had at least some overtly homosexual experience between their teen years and middle age. Twenty-one percent of white, college- educated men and seven percent of white, college-educated women reported having had sex with two or more persons of their own gender, or having had gay sex six or more times. MARSHALL KIRK & HUNTER MADSEN, AFTER THE BALL: How AMERICA WILL CONQUER ITS FEAR AND HATRED OF GAYS IN THE '90S 13-14 (1989). 15. For a general discussion of the problems gays experience being "out" on the job, see DON CLARK, THE NEW LOVING SOMEONE GAY 132-41 (1987). For more specific discussions of problems related to particular professions, see ROCK HUDSON & SARA DAVIDSON, ROCK HUDSON: His STORY (1986) (actors and entertainers); DAVID KOPAY & PERRY D. YOUNG, THE DAVID KOPAY STORY (1977) (professional athletes); Lynn Miller, The Legal Closet, STUDENT LAW., Feb. 1988, at 13 (gay lawyers and law students); Thomas A. Stewart, Gay in CorporateAmerica, FORTUNE, Dec. 16, 1991, at 43 (business executives). 16. See CLARK, supra note 15, at 134. 17. See generally RANDY SHILTS, THE MAYOR OF CASTRO STREET: THE LIFE AND TIMES OF HARVEY MILK (1982) (chronicling the assassination of San Francisco City Supervisor Harvey Milk).