Legal to take out ads listing porn-store customers, to embarrass/drive away business?

[Gfactor]

@Revtim

Also, can a private citizen legally get the name of the owner of a license plate?

Yes. But only if that person has a “permissible purpose.” http://www.nydmv.state.ny.us/forms/mv15.pdf (pdf).

The requirement is imposed by the Federal Driver’s Privacy Protection Act

I don’t think Baldwin has one.

[Slithy_Tove]

Maybe someone could get their doctor to write them a perscription for porn, then Baldwin would be in violation of HIPPA.

[Seven]

The adult store should put a big signs out front telling everyone they’re having a blowout sale on DVD’s.

“Sex Monster on DVD. $1.99 Starring Stephen Baldwin and Mariel Hemingway.”

or

“Pick up your copy of Mercy on DVD for hot lesbian sex scenes. Staring Stephen Baldwin and Ellen Barkin Only $.99”

How about…

“HOT. SEXY. ACTION. ** Stephen Baldwin**, Lara Flynn Boyle, and Josh Charles have a THREESOME - DVD only $2.00”

The more attention Mr Baldwin draws to the shop, the more his name is attached to porn (even thoush those aren’t porn movies). I think that’d be pretty funny.

[Gfactor]

@Gfactor

But only if that person has a “permissible purpose.”

Should be “permissible use.”

[Gfactor]

Simply photographing people from a distance would not be criminal “harassment” under any statute with which I am familiar.

I am also unaware of a civil cause of action called “harassment.” State and federal law proscribe harassment based on membership in some protected class, or based on some other criteria that don’t apply here (e.g., whistleblower, quid pro quo sexual harassment).

In most states, the likely causes of action would be assault or invasion of privacy. Assault won’t work because the visitors won’t be in fear of imminent peril.
http://www.expertlaw.com/library/personal_injury/assault_battery.html#2

That leaves invasion of privacy. This comes in four flavors:

1. Intrusion upon seclusion or solitude, or into private affairs;
2. Public disclosure of embarrassing private facts;
3. Publicity which places a person in a false light in the public eye; and
4. Appropriation of name or likeness.

http://www.privacilla.org/business/privacytorts.html

Any of these might apply, depending on the specifics of state law and the facts of a particular case.

For instance, in some states, non-celebrities do not have a protectible right of publicity (number 4 above). http://cyber.law.harvard.edu/IPCoop/93mado1.html (note 39).

In California they do. http://www.ojr.org/ojr/law/1033683163.php

Another factor to consider in the right of publicity context is that states vary on the use to which a plaintiff’s name or likeness must be put in order for the defendant to be liable. California, again is the broadest: “the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise.” http://www.ojr.org/ojr/law/1033683163.php Some other jurisdictions only impose iability for commercial uses of the name or likeness. New York Civil Rights Law §51; and see, http://www.ssbb.com/rights.html

Usually, disclosure of public information, or intrusion where the person has no expectation of privacy (i.e., standing in front of the porn store) does not create liability. E.g., http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=021965P

Of course, California is a little different. http://www.dwt.com/related_links/adv_bulletins/CMITWint1999RedefPriv.htm

If the information is false (like if someone borrows or steals your car and Baldwin says you were at the porn store) you’ve got a pretty good case for libel and false light publicity.

OTOH, Baldwin’s scheme, if he actually pursues it, will get him into all kinds of trouble because:

Section 2724. Civil action
(a) Cause of Action – A person who knowingly obtains, discloses or uses personalinformation, from a motor vehicle record, for a purpose not permitted under this chapter shall beliable to the individual to whom the information pertains, who may bring a civil action in a UnitedStates district court.
(b) Remedies – The court may award –

(1) actual damages, but not less than liquidated damages in the amount of$2,500;

(2) punitive damages upon proof of willful or reckless disregard of the law;

(3) reasonable attorneys’ fees and other litigation costs reasonably incurred; and

(4) such other preliminary and equitable relief as the court determines to beappropriate.

http://www.accessreports.com/statutes/DPPA1.htm

The DPPA was upheld by the Supreme Court in Reno v. Condon, FWIW.

Here is the list of permissible uses under the DPPA:

(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.
(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only—
(A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.
(5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under chapter 313 of title 49.
(10) For use in connection with the operation of private toll transportation facilities.
(11) For any other use in response to requests for individual motor vehicle records if the State has obtained the express consent of the person to whom such personal information pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.
(13) For use by any requester, if the requester demonstrates it has obtained the written consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002721----000-.html

[Rick]

I’m going to staying on Route 59 1 town over from Nyack starting on Sunday.
Some of my porn collection is getting a little old. I think I need some new stuff. It sure its great of Mr. Baldwin to get this new store some publicity. If he hadn’t made a stink I would have never known the store was there. Now I know where to go shopping.
I’ll make sure I pass along all of your best wishes, when I ask him how much an 8X10 and a set of wallets is going to cost.

Seriously, he has a bug up his ass about an adult book store, but says nothing about the titty bars down the street on Route 59 or or around the corner on Route 303? :wally
WTF?

[Harvey_The_Heavy]

On top of everything that’s already been discussed, wouldn’t Baldwin have to prove that the people listed in his ad actually patronized the store? How many innocent plumbers, delivery people or repairmen do you think will end up listed?

[Revtim]

Gfactor, thanks all that info!

[Gfactor]

@Harvey The Heavy

On top of everything that’s already been discussed, wouldn’t Baldwin have to prove that the people listed in his ad actually patronized the store? How many innocent plumbers, delivery people or repairmen do you think will end up listed?

I doubt he will actually list anyone for the reasons given above.

But no. In the first instance, the plaintiff in a defamation case must prove that the statement was false. The truth as a complete defense statement is a sort of a misnomer.

http://www.abbottlaw.com/defamation.html (Truth is a complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.); http://www.judiciary.state.nj.us/civil/charges/311a.htm ( Plaintiff must prove that the defamatory statement is false.); http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=475&invol=767; http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=082&invol=0466 ( Under well-established principles of law, a plaintiff in a defamation action “has the burden of showing the falsity of factual assertions”)

[Campion]

Gfactor, two questions for you. For both, assume that Mr. Baldwin knows that publishing the names of people who frequent the local porn shop is likely to create some significant civil liability for himself. Assume that he therefore has no intention of following through with his stated plan to publish the names of the owners of vehicles that park in the porn shop’s parking lot. Instead, he plans to stand outside the shop (not on their property) taking photographs of every vehicle and every person that goes into or out of the shop. Next to Mr. Baldwin and his telephoto lens is a large sign that reads, “Smile, You’re About To Be In The Newspaper.”

Question 1: what cause of action, if any, does the porn shop have against Mr. Baldwin, assuming that their sales drop?

Question 2: what if Mr. Baldwin took out a full page ad, once a month, as he’s threatened, and instead of publishing names, publishes photographs of people exiting the porn shop? Legal? Any potential civil liability?

I suspect that publishing photos would be okay. I don’t think you could have an invasion of privacy cause of action for public behavior like exiting a shop.

[Gfactor]

@Campion

Gfactor, two questions for you.

I’ll have to wait until after hours to answer these. But answer them I shall.

[Gfactor]

@Campion

Instead, he plans to stand outside the shop (not on their property) taking photographs of every vehicle and every person that goes into or out of the shop. Next to Mr. Baldwin and his telephoto lens is a large sign that reads, “Smile, You’re About To Be In The Newspaper.”

Question 1: what cause of action, if any, does the porn shop have against Mr. Baldwin, assuming that their sales drop?

The most likely cause of action available to the porn shop is the ominous, frequently bantied-about, interference with prospective business advantage:

The tort of interference with prospective business advantage protects economic interests that have not yet been formalized into contract. The elements of that tort are (1) an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff, (2) defendant’s knowledge of the existence of the relationship, (3) defendant’s intentional acts designed to disrupt the relationship, (4) actual disruption of the relationship, and (5) damages to the plaintiff proximately caused by the acts of the defendant.

Business Torts: Misrepresentation, Contract Interference, and Unfair...

On top of the problems that I am about to discuss, recent New York caselaw seems to make the porn-seller’s case againt Baldwin more difficult than it would first appear. Remember, IANANYL, and I haven’t thoroughly researched the issue. But,

In Carvel Corp. v. Noonan, the Court of Appeals held that in order to sustain a valid tort claim for intentional interference with prospective economic business relations, in the absence of some independent illegal act or malicious motive, the plaintiff must demonstrate that the defendant engaged in egregious misconduct.

http://www.envoynews.com/piperrudnick/e_article000335473.cfm?x=b11,0,w

The court noted that “Carvel did not drive the franchisees’ customers away by physical violence, or lure them by fraud or misrepresentation, or harass them with meritless litigation.” The court ruled that since no independent unlawful act was committed and there was no evil motive, the verdicts for the franchisees could not be sustained.

*Id. *

In New York, then, it apparently takes an “unlawful act” or an “evil motive” to justify liability for interference. California law also requires an “independent wrongful act.”

http://www.lw.com/resource/Publications/ClientAlerts/clientAlert.asp?pid=633

Assuming, for the moment, that the porn seller can make out a prima facie case, there is an additional problem: The First Amendment. In NAACP v. Claiborne, the Supreme Court held that states cannot impose tort liability for non-violent actions of political protest:

While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case.

Baldwin might be involved in a form of political protest. If so, he couldn’t be held liable. The sign certainly seems to be protected speech. And see, Lam v. Ngo (Cal App. 2001) (Peaceful picketing of a business for political reasons cannot be burdened by state tort liability, even if it has the effect of interfering with prospective economic advantage.); Gehrs v. Planned Parenthood of Golden Gate (pdf) (Cal. App. 2001) (unpublished) (distinguishing allegations in Complaint that protesters shout, harass, intimidate and stalk patients and escorts, and on at least one occasion, even assaulted a patient’s spouse from the “peaceful” protest protected by Claiborne).

An interesting twist in this case is that Baldwin’s arguably protected speech is intended to have a chilling effect on the protected activities of others. But the First Amendment does not prohibit individuals from discouraging the dissemination of ideas–only the government.

At any rate, because liability would require some kind of wrongful act, question 2 must be answered before the analysis of question 1 can be complete.

Question 2: what if Mr. Baldwin took out a full page ad, once a month, as he’s threatened, and instead of publishing names, publishes photographs of people exiting the porn shop? Legal? Any potential civil liability?

I suspect that publishing photos would be okay. I don’t think you could have an invasion of privacy cause of action for public behavior like exiting a shop.

In New York, almost certainly not. As I mentioned before, there are four kinds of privacy torts. http://www.pbs.org/newshour/extra/teachers/lessonplans/iraq/privacy_handout.pdf (pdf).

1. Public disclosure of private and embarrassing facts. This one won’t work because it’s no secret that somebody is standing outside a porn shop.

2. False Light Publicity. This one might apply if, for example, the caption described the plaintiff as a customer of the store when in fact they were just walking past the store, were a sales representative, stopped to ask for directions, or something like that. So they were there, but the publication suggests that they were there for porn, when they were really there for a reason unrelated to porn. The *New York Times v. Sullivan * “actual malice” standard would apply if the person was a public figure, especially if Baldwin was a media defendant. But Baldwin isn’t reporting news here and I’m assuming he’s not publishing photos of celebrities going into the porn shop.

3. Intrusion upon seclusion. Not gonna work. A plaintiff can only recover if she had a reasonable expectation of privacy. You don’t have one when you are standing where everyone can see you.

4. Right of publicity. This is it. But in New York, it only applies to exploitation of the name or likeness for “advertising purposes, or for the purposes of trade.” Civil Rights Law §51. So there would probably be no cause of action in New York.

In California, the likely result is just the opposite.

Under California’s common law, one may assert a claim for infringement upon the right of publicity by pleading only four elements: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

http://www.ojr.org/ojr/law/1033683163.php

The “defendant’s advantage” standard is much broader than the New York standard. Therefore, a patron’s suit would be much stronger in California.

This raises another First Amendment problem. In Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court held that the usual First Amendment limitations on state tort law did not apply to right of publicity cases, but it did so based mainly on the commercial exploitation aspect of the tort. “In “false light” cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in “right of publicity” cases the only question is who gets to do the publishing.” Id. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. In this case, none of those concerns apply. The porn store patrons aren’t planning on selling the photos themselves, they just don’t want them to be published. On the other hand, Baldwin is not reporting news–he is publishing an advertisement for his own personal benefit. Therefore, the usual newsworthiness defenses probably don’t apply. http://www.publaw.com/rightpriv.html

Returning to question 1, then, under New York law, the store does not have much of a claim. Under California law, the store might fare a little better. In either case, Baldwin might be able to assert some sort of qualified privilege defense. http://en.wikipedia.org/wiki/Libel#Privilege_and_Malice.

[Campion]

As always, a pleasure to see you work, Gfactor. It sounds like Mr. Baldwin could achieve his goals without exposing himself to too much liability.

[Gfactor]

@Campion

As always, a pleasure to see you work, Gfactor.

It sounds like Mr. Baldwin could achieve his goals without exposing himself to too much liability.

Is that the result that you expected? Am I close on CA law?

[Mr.Slant]

@Slithy Tove

Maybe someone could get their doctor to write them a perscription for porn, then Baldwin would be in violation of HIPPA.

Only “covered entities” can violate HIPAA.
If Mr. Baldwin works for your doctor, he’s a covered entity. If he works for your insurance company, he’s a covered entity. There are two dozen other ways to be a covered entity, but if he is not your agent in a medical matter or in any fashion your agent’s agent, he’s outside of the HIPAA hippo.
In any case, pulling stunts like this is dam*edfool if you have a known net worth in seven figures or above. Some lawyer will come up with a halfway-viable theory of damages when his client loses his wife, job or country club membership due to this.
Especially when it turns out that the car was on loan, etc.

[Campion]

@Gfactor

Is that the result that you expected? Am I close on CA law?

Yes. Of course, I did no actual research. Just some thinking.

As a side note, I believe that under California law, the right to privacy (as discussed in the Clint Eastwood case linked to in one of your links) is limited to appropriation of a person’s likeness for commercial purposes (this comes from the second element you noted: “the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise”). That language comes from Prosser, and I haven’t looked at Prosser to see what “or otherwise” entails.

At the end of the day, I think the problem here is that even if the plaintiff could make out a prima facie case, Mr. Baldwin’s First Amendment rights would trump.

@Mr. Slant

In any case, pulling stunts like this is dam*edfool if you have a known net worth in seven figures or above. Some lawyer will come up with a halfway-viable theory of damages when his client loses his wife, job or country club membership due to this.

There’s the rub. Even if Mr. Baldwin is on legally solid ground in what he plans to do, someone will sue him, just to see if they can come up with a viable theory. In California, that would be fine: under our anti-SLAPP statute, he could recover his attorney’s fees for having to defend against a lawsuit brought to stifle his exercise of his free speech rights. I don’t know how many other jurisdictions have fee-shifting anti-SLAPP statutes, though.

[MsRobyn]

@Gfactor

An interesting twist in this case is that Baldwin’s arguably protected speech is intended to have a chilling effect on the protected activities of others. But the First Amendment does not prohibit individuals from discouraging the dissemination of ideas–only the government.

At any rate, because liability would require some kind of wrongful act, question 2 must be answered before the analysis of question 1 can be complete.

(snipped for brevity)

But doesn’t this lead to the issue of agency – if Baldwin’s organization is getting their driver’s information from the state motor vehicles bureau, doesn’t that make the state an agent of Baldwin’s, and isn’t that government interference in the dissemination of ideas?

I’m not trying to push this into GD; I’m genuinely curious.

Robin

[sunfish]

@Rick

I’m going to staying on Route 59 1 town over from Nyack starting on Sunday.
Some of my porn collection is getting a little old. I think I need some new stuff. It sure its great of Mr. Baldwin to get this new store some publicity. If he hadn’t made a stink I would have never known the store was there. Now I know where to go shopping.
I’ll make sure I pass along all of your best wishes, when I ask him how much an 8X10 and a set of wallets is going to cost.

Seriously, he has a bug up his ass about an adult book store, but says nothing about the titty bars down the street on Route 59 or or around the corner on Route 303? :wally
WTF?

I didn’t realize until I saw this post just where Mr. Baldwin was protesting. Geez, it’s not like that section of Route 59 is such a garden spot, despite the fancy homes in the surrounding area. If he’s so worried about the “moral decay of our culture,” the Romantic Depot (may be not safe for work), a little ways down the road in West Nyack and right across from the Palisades Center Mall, is a helluva lot more visible than some little shopfront near a gas station/car dealers/etc. Oh wait, it’s more than a mile away from his house… :rolleyes:

[Gfactor]

@Campion

There’s the rub. Even if Mr. Baldwin is on legally solid ground in what he plans to do, someone will sue him, just to see if they can come up with a viable theory. In California, that would be fine: under our anti-SLAPP statute, he could recover his attorney’s fees for having to defend against a lawsuit brought to stifle his exercise of his free speech rights. I don’t know how many other jurisdictions have fee-shifting anti-SLAPP statutes, though.

New York has one too

[msmith537]

I think it would be more embarassing to be put on a register of people who rent Stephen Baldwin movies.