Political and sports figures have recently argued that their sex lives are not a matter of public interest. Consider, for example, Herman Cain: in response to allegations from Ginger White that she had a decade-plus affair with him, Mr. Cain’s attorney, Lin Wood, said that those kinds of allegations have no place in public discourse and that Cain would not discuss them.
David Beckham, too, insisted in his lawsuit for libel against In Touch magazine that the story about his alleged sexual interaction with a prostitute was not a matter of public interest.
So the question is whether a political candidate’s or a world famous athlete’s sex life is a matter of public interest. The answer is not so simple and can be argued both ways. Under the first prong of the anti-SLAPP statute, it can contended, under fairly recent authority, that a public issue is anything in which the public is interested. Applying that standard to Beckham’s case, one can definitely make a strong argument that the allegations about his sexual dalliances with a prostitute is a matter of public interest. After all, Beckham is internationally recognized as a sex symbol. And there had been previous stories of his alleged marital infidelity. It could also be contended, however, that a public figure’s sexual encounters are private and therefore not a matter of public interest. The essence of that argument is that even public figures have some level of privacy to which their entitled. Unfortunately for Beckham, in his case, the District Court determined that the anti-SLAPP statute applied, so his case was dismissed. Apparently he has appealed that decision.
The same analysis could be applied to Mr. Cain’s situation as well. Assume he files suit against Ms. White for defamation. She could then file an anti-SLAPP motion. As in the Beckham situation, White could argue that there were previous stories of Cain’s alleged inappropriate relationships with women. But unlike Beckham, Cain was never known as a sex symbol nor did he promote himself as such.
The most interesting aspect of these stories is the idea that any person, let alone a public figure, could lose all right to privacy. No California court has squarely decided this issue in the anti-SLAPP context, but it’s only a matter of time.