It’s been a busy week in the legal blogosphere. We’re a committed group blog here at Point of Law, so we teamed up to cover the many topics summarized below. A big thanks to Larry Ribstein, Tom Kirkendall, Ted Frank,…

“Sexually explicit conduct” does not cover wet T-shirt contests and breast-baring.

Furthermore, many of the producers of videos of young women doing ill-advised things while drunk claim to be “documentary producers” and therefore get into a newsworthiness First Amendment exception to much of the obscenity regulation.

If one is in a public or semi-public place where videotaping is occurring, there is no tort defense without a statute like N.Y. Civil Rights L. § 50. Even with such a law, there is a broad First Amendment exception that courts have found to include magazines such as Celebrity Skin. There is no false light or defamation because the young person did what is on tape. There is no invasion of privacy because, absent an express commitment not to use the tape, there is no reasonable expectation of privacy.

The age of the plaintiff, outside of contract, is mostly irrelevant because child pornography and public nudity statutes are written in such a way that mere breast-baring will not likely trigger them.

Intoxication will not matter unless the videographers happened to use the intoxication to lead young women aboard a sea-going vessel; then it falls under the shanghaiing statute. Otherwise, the state of the law requires one to black out before intoxication matters.

Even if the young person was young enough to repudiate the contract, there’s no reason she should get millions of dollars. The value of her performance (if we consider it an acting job) is at most $500 according to Screen Actor’s Guild guidelines. After a trial, one could restrain publication of further videos, but that usually is of no benefit to the plaintiff and little detriment to the publisher, so it’s not worth millions of dollars. Bounty-seeking should be impossible on these facts.

We use CRIMINAL law like statutory rape to protect minors from their own bad decision.

But we don’t use CIVIL law to do that as much. Consent can exist for purposes of tort law even where it is absent for purposes of criminal law.

In civil law, unlike criminal law, there is no fixed minimum age of consent.

For example, some states deter minors from engaging in conduct designated as exploitation of the minor (such as statutory rape) by either barring them from bringing a damages claim for the consensual sex (as one California Court of Appeal did) or by reducing their recovery by the amount to which they were culpable in the statutory rape (as a Louisiana court did).

Remedies for statutory rape in such jurisdictions are thus more limited in the civil context than in the criminal context to discourage minors from engaging in the prohibited behavior.

By analogy, this young woman should not have been allowed to bring a civil action suing over the wet T-shirt contest she willingly engaged in, since that gives her an incentive to do it again.

That is so even though the government might have the power to fine the makers of the video of the contest for failing to check her age.

(For citations to cases in which plaintiffs were barred from suing for statutory rape, or had their recoveries reduced because of the consensual nature of such sex, see the brief for the prevailing respondent James Crawford in United States v. Morrison, 529 U.S. 598 (2000), which overturned the civil tort remedy contained in the 1994 Violence Against Women Act).

There are cases where the authorities have gone through the diary of some underage slut and prosecuted every one of her of-age conquests, putting them in prison and registering them as sex offenders, to spend the entire remainders of their lives regarded as subhuman perverts who should be executed or at least castrated to protect children from their predatory ways. What about the girl? Her punishment is to go back home to her mother and resume her lifestyle if her mother can’t control her. Who is the serial predator in this case? Who are the real victims?

God knows there is plenty of truth that forms the basis for the current sex offender hysteria. But a goodly portion comes from countless additional examples of a legal system foul with hypocrisy and corruption. I would love to see Overlawyered address that angle once in awhile.

I am actually surprised we don’t see more of that – it’s the exact same logic as such suits against gun makers. (Not that I think either type of lawsuit is anything less than abhorent, mind you.)

Back on topic:

If they took her word for her age, then yes, they should be liable (but again, and obviously, not the hotel).

(Aside: sadly, some bartenders hav ben subjct to such penalties even when the underage person had a very good fake ID. Same thing with statutory rape, actully – a guy picked up a girl at a bar, where she was drinking. She had ID saying she was 21. When it turned out that she was 15, he was arrested for statutory rape. Both of those cases are really messed up.)

Complete agrement that she shouldn’t profit from it.

Question: How do you suppose alcohol bottlers have been able to stay out of the targetting scope of trial lawyers? If this girl was drunk, wouldn’t the person who made the product which allowed her to achieve this ‘vulnerable’ condition be liable? One would think those that produce alcoholic products can reasonably forsee the danger. If a cigarette manufacturer is liable for the detrimental effects of someone legally using their product (as intended), isn’t Budweiser just as responsible for the same.

If a football stadium vendor is reponsible for an accident which occurred as a result of him legally selling beer to a patron, doesn’t the manufacturer of that beer share in that liability? When’s the last time a beer manufacturer was a named Defendant in a DUI-related car accident victim case?

I wonder, if I get a DUI and suffer harm as a result (embarrassed, humiliated, lost wages, emotional distress, etc.) would I not have a good case to bring against Miller to compensate me for my injuries? Hmmm… sounds like an easy way to financial freedom.