The only theory on which I thought she could possibly succeed was that Brooke’s mother had no

4.2.12 WC: 191694 The only theory on which I thought she could possibly succeed was that Brooke’s mother had no right to surrender her daughter’s privacy and that Brooke, now approaching adulthood, should have control over her own image. Ultimately the court ruled, in a bizarre opinion, that Brooke had essentially waived her right to privacy by allowing the photographs to be published earlier, and by pursuing a career in which she has relied on her sexuality for her success. The court put it this way: “Much of plaintiff's recent commercial activity upon which her fame is based has been far more sexually suggestive than the photographs which have been shown to the court. These photographs are not sexually suggestive, provocative or pornographic; they do not suggest promiscuity. They are photos of a prepubescent girl in innocent poses at her bath. In contrast, defense counsel have submitted numerous samples of sex-oriented publicity concerning plaintiff. Particularly notable is her widely televised sexually suggestive advertisement for blue jeans. Recent film appearances have been sexually provocative (e.g., “The Blue Lagoon”, “Endless Love”’.). Plaintiff's claim of harm is thus undermined to a substantial extent by the development of her career projecting a sexually provocative image. This reasoning fails to distinguish between a 17 year old and a 10 year old. The earlier photographs were taken of a 10 year old kid, whose mother controlled what she would do. Her later appearances were made by a near-adult and were far more within her own control. The court simply ignored the argument by the 10 year old should not be bound by foolish decisions made by an ambitious mother when Brooke was too young to say no. I believe that if this case were to come before a court today, in light of the new sensitivity toward child exploitation, the case would have been cited in favor of Brooke Shields. I had mixed feelings about the result because it was a victory for the First Amendment, but at a heavy cost to a young woman about to enter college. Eventually the case was settled and the calendar wasn’t distributed to Brooke’s Princeton classmates. Brooke Shields went on to a successful career as a multi-dimensional performer. Another conflict arose when a blogger posted a naked photograph of a famous athlete’s two year old son, and in the caption focused the viewer’s attention on the size of the boy’s penis. The issue I was asked to address was whether the blog met the criteria for child pornography, which is not protected by the First Amendment. This was an unusual request, since in most of my prior cases invoking charges of child pornography, I defended the person charged. In one such case, a medical student who had worked as a camp counselor had taken thousands of photographs of his campers, including several of them “skinny dipping.” The focus of the photographs was not on the genitals and we argued that they were no different, as a matter of law, from nude photographs taken by recognized artists such as Robert Mapplethorpe, Sally Mann and David Hamilton that were exhibited in museums. I won that case and several others like it. 133 HOUSE_OVERSIGHT_017240