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was so deeply offended by the image at issue that it blinded them to the obvious public nature of a union election. It was a hard case that made bad law. Fortunately the bad law it made has not been followed in other cases involving less disturbing images.
I understand how Bowman must have felt when several years later I was victimized by a cartoon that was similar to the one at issue in her case. It was commissioned by Norman Finkelstein and used to illustrate an article he wrote calling for my assassination. It was a full-color cartoon by a South American neo-Nazi portraying me as watching the Israeli Army kill Lebanese civilians. It had me sitting in front of the television and masturbating in ecstasy over the civilian bodies strewn on the ground. Since I am clearly a public figure, and since this was plainly a parody, it was protected speech under the First Amendment. To be a First Amendment lawyer requires developing thick skin.
Privacy- The right to be left alone
The right of the media to publish purely private though truthful information was the subject, more than 100 years ago, of a classic law review article co-authored by Louis Brandeis, who eventually became one of the “founding fathers” of the 20" Century rebirth of the First Amendment. As a young lawyer, Brandeis was concerned about how local tabloids were publishing gossip about prominent people, including members of his own partner’s family. He and his partner wrote “The Right to Privacy” in the Harvard Law Review (1890) in which they set out this new right to “be let alone,” which they analogized , at least superficially, to the law of defamation. Remarkably, especially in light of subsequent developments, Brandeis did not seem particularly sensitive to how his new right of privacy might conflict with the old right of the press to publish scandalous material.
The conflict between privacy and publication becomes particularly sensitive when they privacy at issue relates to minors. I have been involved in several such cases. One of them pitted the right of Brook Shields to prevent the publication of nude photographs taken of her when she was 10 years old against the right of the man who “owned” the photos to publish them.
When Brooke Shields was 10, her ambitious mother Teri signed a contract with an equally ambitious photographer to photograph Brooke naked, taking a bath. Brooke was paid $450 for the photo sessions by Playboy Press, and her mother signed a release giving the photographer the unlimited right to publish the photographs anywhere and at any time.
Seven years later, as Brooke was about the enter Princeton as a freshman, the photographer decided to exploit her fame by producing a calendar featuring naked pictures of the 10 year old. Brooke was upset that any such calendar would circulate among her fellow students at Princeton and would cause her great embarrassment.
She hired a former student of mine to try to negotiate with the photographer to buy back the rights, and if that failed, to try to prevent publication of the photographs. My former student sought my advice on the matter. I told him it would be an uphill fight to try to enjoin the publication of the pictures, because they were not obscene and because prior restraint is always disfavored by the law.
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