About That Lawsuit...

by Kevin Taylor & r & & r & & lt;span class= & quot;dropcap & quot; & W & lt;/span & ayne Besen -- author, activist and attacker of right-wing gay-bashers everywhere -- remembers "reading with glee" the Spokesman-Review stories last May revealing that former state legislator and Spokane Mayor Jim West, who was noted for his anti-gay stands, had been cruising for sex on Gay.com.


"There is nothing as satisfying as a hypocrite getting busted," the Miami-based Besen says.


Then something terrible happened. Call it "context."


Last week, the feds "found that the powerful politician had not traded jobs for sex and there was no link to pedophilia, even after they confiscated three personal computers and 60 computer disks," Besen writes in an online post-mortem (www.waynebesen.com) this week. "Upon further examination, it appears that Jim West may have gotten a raw deal ... The newspaper did more than simply 'out' West -- it obliterated him and then stomped on his remains."


Besen, not shy about stomping on public figures himself, says this week's posting "was the column I never expected to write."


He says he was surprised the FBI ended a nine-month investigation without bringing charges. "You know those guys were gunning for him. They wanted to find this guy guilty, and they wanted to find child porn," Besen says of the FBI, which aggressively pursues kiddie porn.


"So I went back to the original articles and read them without glee. The more I read, the more horrified I became," Besen says.


He recoiled at the first-day banner headline and lead paragraph tying West -- largely, he says, without substantiation -- to pedophilia. And "that they were printing a guy's most intimate conversation -- that they had initiated -- and he wasn't doing anything wrong."


Besen applauds the Spokesman-Review for outing West, and supports the paper's decision to go undercover with a forensic computer expert posing as a gay teen (Moto-Brock) to get the story. He objects, however, to the publication of the Moto-Brock transcripts.


"That's an incredible breach of privacy. It's just humiliation," Besen says. "If he's online talking to a 10-year-old, you print it because he's a menace. But when it's legal, it's just a gratuitous attack."





& lt;span class= & quot;dropcap & quot; & A & lt;/span & nd it's also the likely entr & eacute;e for West's threatened lawsuit against the Spokesman-Review.


Thanks to First Amendment protections, it is rare for a public figure to win a libel suit. So West, if he ever does file suit, will take the less-tested but increasingly popular tack of suing under invasion of privacy torts.


"There are four general torts," says David Hudson, a research attorney with the First Amendment Center in Nashville, Tenn. "One is public disclosure of private facts, there is intrusion, appropriation and a 'false light' invasion of privacy."


Hudson says West may have a viable tort claim based on public disclosure of private facts or intrusion. "There may be some significant First Amendment hurdles to clear [but] ... there are lower-court precedents out there where [West] may have a claim.


"This is right on the cutting edge," Hudson says.


He and other attorneys contacted by The Inlander point to two lawsuits that don't focus on the media's right to publish stories, just on the process of going undercover to get them.


The cases are Food Lion v. ABC, and Sanders v. ABC.


In the former, two PrimeTime Live reporters used fake names to get jobs at Food Lion to check out rumors of unsanitary practices. Food Lion never challenged the truthfulness of the report but accused the reporters of fraud and trespass. And won. A jury awarded Food Lion $5.5 million in punitive damages. This was later reduced to $2 by the Fourth Circuit Court of Appeals (a dollar on each count), but the justices still upheld the verdict against PrimeTime Live.


"My jury in Sanders kicked the shit out of ABC, too," says Neville Johnson, a Southern California attorney who has filed nearly a dozen privacy tort lawsuits against media sting operations.


In Sanders, reporters went undercover at a psychic hot line to unmask the people dispensing advice as having no psychic powers. As in Food Lion, conversations were secretly taped. The jury awarded Johnson's clients -- one of whom committed suicide during the trial -- $1.2 million.


The California Supreme Court, on appeal, largely upheld the verdict, noting that a workplace -- though filled with people -- is still a private space and there is reasonable expectation to not have your conversations show up on the news.


This reasonable expectation of privacy will be key to West's suit. Were his conversations with Moto-Brock in the chat room private? Were his conversations private when they left the chat room to e-mail each other outside the auspices of Gay.com?


Johnson says West's status as a public figure -- especially one who had a secret private life at odds with his public persona -- will make it tough for him to prevail.


"Forget the gay issue. You can argue 'How can we trust you on water bonds or new schools if you are talking out of both sides of your mouth?' It's a credibility issue," Johnson says.


But at the same time, "This is by no means a slam dunk that the [S-R] will prevail because of the publication of private e-mails as well as the seduction -- literally -- by the newspaper."


Johnson adds: "I am always very troubled when members of the press engage in stings." He cites these reasons: The journalist becomes an actor in the story; stings lead to preordained results; and the deeper the media gets into it financially, the greater the desire to show results.


A lawsuit by West is being seriously pursued but is not imminent, says Bill Etter, one of the former mayor's local attorneys. The many shades of gray to be filtered by such a suit is one holdup, Etter says. Another is money. Such a suit is likely to be protracted and expensive.