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Bashful Barbra: a judge rules Streisand's privacy wasn't violated by a photo of her property.

Oh, how hard it must be to be Barbra Streisand.

"Adored by her fans, followed by the curious, and stalked by the obsessed," as a judge put it, she has chosen to reside in a lavish estate on a secluded parcel of land on a bluff overlooking the beach at Malibu in an effort to "shield her private affairs from public view." The mansion is surrounded by a wall, with vegetation planted along the property line to protect the diva from prying eyes.

Sounds pretty idyllic to me. But there was trouble in paradise, in the form of environmental activist Kenneth Adelman, who had the temerity to take a picture of that particular stretch of Malibu beach as part of his aerial photo survey of almost the entire California coastline.

Adelman's California Coastal Records Project Web site contains more than 12,200 digital images shot from a helicopter, which are available for free download by government agencies, researchers or, for that matter, anyone who wants them. Proceeds from the sales of higher-quality photos are donated to the California Coastal Protection Network.

One of the photographs, image 3850, includes Streisand's property. The photo was taken at a distance of about 2,700 feet, with a lens described as producing photographs of lesser resolution than a standard 35 mm lens.

You can pick out the swimming pool, the rear deck and the rear elevation of Streisand's house, but you can't peek inside the residence itself. The tiny, murky images of some individuals appear in the right margin of the photo, too small to be identified.

But for Streisand, this was still too close for comfort. She sued Adelman in Superior Court in Los Angeles, claiming that he had violated her right to privacy under the California Constitution and common law by taking and publishing a photograph of her home without her permission. She also invoked the state's anti-paparazzi law, adopted in 1998 following the death of Princess Diana, which punishes photographers who use "visual enhancing devices" to take pictures of people engaged in personal activities.

[ILLUSTRATION OMITTED]

Streisand probably thought she had a good chance of prevailing in court in celebrity-obsessed California. After all, that's the state where, in 1999, a federal judge ruled in favor of Dustin Hoffman in an invasion of privacy suit against Los Angeles Magazine, referring to the actor as "truly one of our country's living treasures." (The 9th U.S. Circuit Court of Appeals later reversed the decision.)

But Judge Allan J. Goodman wasn't inclined to be quite so obsequious. Goodman not only threw out Streisand's suit, he also ordered her to pay Adelman's legal bills.

Although acknowledging that the California Constitution does protect the right to privacy, Goodman found no violation in this case.

Streisand is not a reclusive individual, dragged out of seclusion by a helicopter hovering over her house, he wrote. Instead, she is "active in the field of entertainment and as a commentator on current political issues," including environmental topics--she publishes her views on her Web site. The relationship of her property to the California coastline is a matter of public interest and concern, Goodman added, especially because Streisand had "a property matter" pending before the local planning agency at the time.

There was nothing offensive about the way the helicopter shot the aerial view, Goodman wrote, nor was it trespassing, even though the image depicted sights that couldn't be viewed from the street. The sky really is the limit, it seems; California has rejected the notion that anyone can "own" the space over his or her property. "At its most detailed, the photograph at issue reveals no truly private place," the judge ruled.

And, finally, Streisand had already allowed People magazine to publish similar photos of her home, inside and out. She can't have it both ways. Coastal Records' publication of its less-detailed image, even on the Internet, could not be an intrusion into her privacy, Goodman wrote, because the scenes were no longer private.

"The simple fact is that 'the bell cannot be unrung,' " the judge concluded.

So, what's a celebrity to do? Goodman would probably say, get a life. " 'Anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he [or she] is a part,' " he quoted the American Law Institute's Restatement of privacy tort law as saying. " 'Complete privacy does not exist in this world except in a desert.' "

Certainly not on the beach at Malibu.

Jane Kirtley (jkirtley@suffolk.edu) is the distinguished visiting professor of law at Suffolk University Law School in Boston.
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Title Annotation:First Amendment Watch
Author:Kirtley, Jane
Publication:American Journalism Review
Geographic Code:1USA
Date:Feb 1, 2004
Words:765
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