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Friday, June 6, 2003

Someone Talked!

by Clinton Fein

Click to Send PostcardItís quite possibly everyoneís worst nightmare at some point or another. Youíve perhaps had one too many drinks; youíve gone home with someone you might not have otherwise, and then suddenly one morning you wake up and every single sordid detail you dreaded would ever be revealed anywhere ever, has been published on a web site alongside your image, exposing your weaknesses and flaws for the whole world to see.

When Katy Johnson, a former Miss Vermont and Miss Vermont USA in 1999 and 2001 respectively, experienced this horror following an extended encounter with a notorious writer with a pretty decent memory and a remarkable ability to recollect every nuance, if not tongue stroke, she did what any red-blooded American would do. She filed a lawsuit. Moulin Rouge this wasnít.

On May 6, 2003, a Palm Beach, Florida judge for the Fifteenth Circuit, Diana Lewis, issued a temporary injunction that was the legal equivalent of shoving the constitution as far up her ass as physically possible. The order contained -- among other constitutionally precarious items -- a prior restraint so broad and ill-considered it is almost certain to be reversed. As is most often the case with prior restraints on speech, Lewisí lack of respect for, or understanding of, the constitution has done, and will do more to damage the reputation of the supposed victim in this case than the actions of the defendant.

Tucker Max published a rich account of their relationship on his website, www.tuckermax.com, which contains a trove of details of numerous of his sexual escapades. The court order demands the removal of any reference to Ms. Johnson and forbids Mr. Max to write about Ms. Johnson in the future, (or anyone name Katy for that matter), not to mention any other Johnsons or Miss Vermonts.

What makes the case so interesting is that both parties use their real names as brand extensions to sell themselves and related products, essentially presenting themselves as public figures, particularly relevant to the legal aspects pertaining to privacy. And to an extent muddying the waters as to whether the alleged transgressions pertain to commercial speech or not. Both parties attended law school, both have authored books and both rely on their looks to promote their image. Both have appeared on different programs on MTV, and both are lightning rods for controversy.

That is, however, where the similarities end, and everything else about these two individuals is nothing short of a series of startling contradictions.

Mr. Max first heard the news while driving his car in Austin, Texas. His mother called him having herself received a phone call from a Palm Beach Post reporter seeking comment on the restraining order imposed on her son. A press release generated by the office of Ms. Johnsonís Fort Lauderdale based attorney, Michael I. Santucci, had been circulated, hailing the restraining order a "victory" that "should send a clear message to all parasitic smut peddlers who live off the good names of others." An article in The New York Times this week called him a cad, she a beauty queen. In reality, things are far more complex, raising all sorts of questions pertaining to misogyny, property, privacy, First Amendment, battery, defamation and libel.

Katy Johnson appears harmless enough. Her web site www.katyjohnson.com contains the type of saccharine fluff that would make most people nauseous, although, in Ms. Johnsonís defense, pre-teen girls are its intended target. "Obscene things being said in the name of the flagÖShould make most people want to GAG!" Case in point, irony notwithstanding, gag order notwithstanding. While touting the wonders of beauty pageantry to young girls, and the extent to which physical beauty contests help facilitate self-esteem would occupy psychologists for hours on end, Katy Johnson has parlayed her celebrity status as a Miss Vermont winner into a brand, replete with books, columns, theater and commercials, a film and television career.

The very first page of the initial complaint, filed on Ms. Johnsonís behalf by Mr. Santucci, tends to highlight the essence of the suit. "Defendant maintains an adult website which contains content which constitutes public disclosure of embarrassing private facts." What constitutes private is the crux of the matter. Seemingly these are not merely allegations, but embarrassing private facts.

Tucker Max is every sibling of a sister -- or parent of a daughterís -- worst imaginable suitor. His voracious sexual appetite, (frequently fulfilled it seems, if the messages on his web site are to be taken at face value), serves as the creative core of his career as a writer, allowing him to turn almost every sexual conquest into a graphically detailed account of the shared experience. Naturally, his version. Usually fictionalized. His two books, "Belligerence & Debauchery" and "The Definitive Book of Pickup Lines" are not just sold on his web site but are carried by Barnes & Noble.

At first glance, his writing reveals him to be an arrogant, self-centered asshole with both an attitude and a drinking problem that leaves you wondering why someone's brother or father hasnít already beaten the shit out of him, (if not a newfound understanding of where Lorena Bobbitt was coming from). However, dig a little deeper and youíll find an intelligent, articulate writer with a law degree and a pretty wicked sense of humor. Heís still an arrogant asshole with a drinking problem and ego issues, but heís the first to admit it, particularly since itís the winning formula upon which his never-ending adolescent public persona is constructed.

Mr. Max still smarts, however, at Mr. Santucciís press release referring to him as a "parasitic smut peddler" who lives "off the good names of others."

"If I made money off the site exploiting pornography I would be lot richer," he told me in a telephone interview for this article Ė his first since the order was issued, and having declined, through his agent and attorney, a request for an interview by The New York Times. "Iím writing about events and things that happen in my life, and have made no money off one individual person. I donít exploit pornography for personal gain. Itís ludicrous to even put me in that company. Itís unfortunate someone as educated as Mr. Santucci canít understand the core of what my literature is about."

Tucker Maxís autobiographical essays indeed contain adult themes and lots of sex -- enough to garner the attention of (surprise) an MTV producer, which resulted in an appearance on MTV's Sex2K. To portray him as a pornographer or smut peddler, however, is an easy way out for those quick to arrive at conclusions and are invariably wrong. If there is a preponderance of sex and alcohol in his stories, it because heís constantly getting drunk and constantly getting laid. That doesnít make him a pornographer any more than an honest account of the Monica Lewinsky affair in the memoirs of Bill Clinton would make the former President one. It makes him human. If he treats women like shit, (and he does) itís because he treats everyone like shit. Were they men he was relentlessly fucking, rest assured they would be treated with the same scorn and derision he lays on almost everyone.

Mr. Max's site is a virtual parody of himself, originally set up as a bet during his law school, where women submit an application to date him, and existing currently as an extension of his branding -- a point of contention raised in the original complaint filed by Ms. Johnson, alleging he has made use of her "name, portrait photograph and other likeness to promote his web site, books, merchandise and his career as an authority on 'picking upí women'."

If Tucker Maxís web site is a living testament to the joys of alcohol, promiscuous sex, belligerence and debauchery, along with a vehicle for selling his books and merchandise, Katy Johnsonís web site is a cartoonish shrine to her beauty pageant victories, virtuosity, and Barbie doll sensibilities, worshiping shallow values through a "character education" comic strip for young girls, with related books and merchandise for purchase. For every self-degrading expose on Mr. Maxís website, such as "I am a whore for attention. Any kind of attention. If the spotlight is not shining directly upon me, I feel small inside," there are messages on Ms. Johnsonís such as "good choices charm, and keep you from harm" and "we have self-esteem and love being seen."

One thing is certain. Neither Tucker Max, nor Katy Johnson can claim a penchant for privacy. Both use their name, likeness and exploits, personal and professional as flat out branding opportunities. A proudly filthy Mr. Clean meets a blonde, Bible-verse-spouting SunMaid.

While Tucker Maxís site serves as a blueprint for guys getting laid by people stupid enough to actually fall for unadulterated bullshit or smart enough to not care if getting laid is the prime objective, Katy Johnsonís site is a series of aching contradictions, spouted through her cartoons. "Happiness does not depend on circumstances or men!" depicts three girls looking like Spice Girls raising 'girl power' fists, while two cartoons later, a woman clasping a manís hand informs "Happiness is Godís sign that you have peace of mind."

With cutesy phrases like "Sítalking," Ms. Johnsonís site appears to be hitting straight back at Mr. Maxís. "A guy is saying things about me that just arenít true. Please will you tell me what I should do?" a forlorn looking cartoon character asks a cow in a MOOÖT court (Iím not making this up). "A scary guy is threatening me with his blasphemeÖ And I donít know what to do about him! HOLY COW! This guyís a snake Ė and itís not about wordsÖbut itís all about HIS-SS and HER-TS!" and "Thereís this guy whoís a slanderous talkerÖIím scared to death heís becoming a stalker."

Aside from the voluminous distinctions between talkers and stalkers, the message is as confusing as it is disturbing. Are stalking, slander and "sex harassment"and "guys who disrespect sex" common enough themes with men in Ms. Johnsonís life Ė enough to impart this worldly wisdom to pre-teen girls (as she characterizes the target audience of her site) -- or is she as guilty of exploiting her understanding of her experiences with Mr. Max for commercial gain as she claims he is?

Among the general allegations raised in Ms. Johnsonís suit is that "plaintiff maintains a childrenís web site which details her personal and professional resume" and "commercially exploits her name and likeness in connection with her business, and has never publicized any facts relative to her relationships, or her personal and/or intimate affairs."

Ms. Johnsonís suit further describes Mr. Maxís site as containing "his personal biographical and private sexual exploits with various women, as well as related books and merchandise for purchase including womenís panties, thongs, aprons, jackets, shirts and hats." (Italics ours).

Publishing biographical information on a web site can not be characterized as "personal" any more than his graphic descriptions of his sexual exploits can be characterized as "private."

"The issue would be different if she sued me for libel or defamation which would assert I am lying, rather than public disclosure of private facts," says Mr. Max.

An interesting component to this story is that real names are seldom used in most of the essays on Mr. Maxís web site. A three page affidavit by Ms. Johnson submitted in the original court filing refers to Mr. Maxís narrative as his "claimed private sexual affairs with me" and later states she did not "consent to or authorize such private information, notwithstanding its truth or falsity, to be disclosed publicly." Nowhere in the affidavit does Ms. Johnson categorically deny Mr. Maxís account.

It was what Mr. Max felt was the inherent hypocrisy on Ms. Johnsonís website that compelled him to write the story of their relationship without changing her name or shielding her identity.

"I am exactly who I am. If I was some Internet geek who never got a girl, and stayed home and passed out on two beers and then someone exposed me, God bless 'em. Iím exactly who I portray myself to be," Mr. Max says emphatically. "My mantra for dating is honesty. Dead pan honest. Everything about me is on my site. I donít hide from it. Women see the humor in it and that it's tongue in cheek."

If Katy Johnson exploits her own image to promote values to children, there is, indisputably, a legitimate public interest in determining whether she is "unintelligent and/or naÔve and promiscuous" as her court filing describes Mr. Maxís characterization of her. When the King of Hypocrisy, William Bennett, was exposed for a gambling away the profits from his book on virtues, there was, similarly, a legitimate public interest in revealing his wayward ways in casinos.

If Ms. Johnson is selling young girls books promoting abstinence and sobriety and creating and publishing "character education" cartoons, her choice to give drunken blowjobs in a guyís kitchen, or fuck someone sheís just met in her SUV allows for, if nothing else, an informative contextualization. And if itís Tucker Max, sheís allegedly choosing to fuck, who has not only a reputation for being a self-centered slut, but actively and shamelessly promotes it; itís kind of difficult to prevent the term "naÔve" from springing to mind.

John C. Carey, a lawyer at Stroock & Stroock & Lavan in Miami, represents Mr. Max. Mr. Carey said he would soon ask Judge Lewis to dissolve the ex-parte temporary injunction and dismiss the case. "We are shocked and dismayed that the court would issue an injunction without any notice or without any hearing," Mr. Carey said in a telephone interview with Annoy.com for this article. Mr. Carey also plans to contest the jurisdiction as well.

Which raises another interesting part to the "he said/she said" angle of this saga. What Mr. Max described in his story as a hot and heavy seduction that began under a gazebo in the middle of Mizner Park in Boca Raton, Florida, Ms. Johnsonís lawsuit contends, in Count III, is common law battery. The charge accuses Mr. Max of making physical contact "willingly, wantonly, and with malicious intent in order to cause harmful or offensive touching to the plaintiff." A charge at odds with Mr. Maxís version of events, which may have been willing and wanton physical contact, but with the sole intent of getting laid, and as a very mutual exercise.

Mr. Carey characterizes the battery claim as baseless. "The battery claim is a jurisdictional ploy, which Tucker denies completely. There are no details in support of the claim. This took place in 2001, and she waited two years? Was a police report ever filed?"

Ms. Johnsonís legal counsel, Michael I. Santucci, declined comment, although his office offered to forward a now old press release hailing the ruling, and, as pointed out in an article in The New York Times, one at odds with his attempt to seal the court record on the basis of privacy -- as well as an emphatic denial from Ms. Johnson about the story Mr. Max was ordered to remove.

Ms. Johnson has since hired a Boca Raton public relations firm, Transmedia Group, who Thursday issued a PR Newswire press release on her behalf stating she had "won a preliminary injunction against a web site that demeans women and promotes character assassination" and accusing Mr. Max of exploiting her image and publishing "scurrilous lies about her" to "sell T-shirts and other merchandise." She accuses Mr. Max of "willfully violating" the injunction and states she "intends to go back to court to find him in contempt."

"This person is greatly harming me by the way he is associating my name with his immoral web site and the disgusting products he promotes," she is quoted in the press release, puzzlingly incognizant that the release itself will in and of itself forever associate her name with that of Tucker Maxís -- as well as the terms immoral and disgusting -- given the nature of search engines, and particularly since the PRNewswire release states her biggest concern as being little girls trying to find her web site "were being diverted by search engines to Max's depraved web site."

Glen Calder, a spokesperson from Transmedia Group in a telephone conversation with Annoy.com for this article, was not able to offer much more than what was stated in the press release. Asked if there were at least some parts of the story that were true, he was unable to comment. He was surprisingly unaware of the battery charge contained in the original filing, and was not sure how far Ms. Johnson was willing to take this matter legally, although he characterized her as "a fighter," even though she is upset.

"She is currently laying low. She does not want to do media interviews, and wanted to tell her side of the story so that requests from the media would stop," said Mr. Calder. Asked if the issuing of another press release would perpetuate rather than quell media interest, Mr. Calder responded that the flood of media suggested it was time to issue the release, without doing interviews, so Ms. Johnson "could speak her mind and let it rest at that."

In a tortured interpretative stretch of the law, Mr. Santucci preempts a legal challenge by Mr. Max arguing that even if he was to argue that Ms. Johnsonís "status as Miss Vermont and Miss Vermont USA somehow thrusts his web site into the category of a 'presentation having a current and legitimate public interest,' this subsection still requires that the public interest being served is 'current'." He asserts further that since Ms. Johnson was Ms. Vermont in 1999 and 2001, Mr. Max would not meet the "current" criterion. The reality is that Mr. Maxís decision to expose his relationship with Ms. Johnson was not because she was Miss Vermont or Miss Vermont USA once upon a time, but because she is currently using that very status to promote herself and her web site and associated merchandise with values he contends are false and misleading, if not blatantly hypocritical.

According to Mr. Calder, Ms. Johnson has received tons of email support, including from women claiming to have also been written about by Mr. Max, although under fictional names. She has also received angry, accusatory and vindictive emails calling her names. Mr. Max also claims to have received a flood of email. "I have received so many emails I could not even count them," he says. "Hundreds of responsesÖ whether you hate, love or are indifferent to Tucker, all support my right to individual freedoms."

Mr. Max, who graduated law school at Duke University and left behind a legacy of controversial antics, and went on to a short-lived but eventful stint as a summer associate at a Silicon Valley firm, quit practicing law because, he says, "I despised the practicing of law in the United States in a large corporate setting, but now the pendulum has swung and I may become a footnote in legal history."

Ironically, Katy Johnson might have succeeded Ė however unintentionally Ė in shifting the fundamental behavior of Tucker Max, for the better as far as society is concerned, although he may lose some hardcore fans as a result. For someone who brazenly claims to have no respect for authority, Mr. Max took great pains to ensure that everything communicated to me was within keeping with the stipulations outlined in the court order, and would not say anything on record that could be considered a violation. "I want to avoid making this a personality issue -- a he said/she said -- but rather a precedent that establishes new legal ground. Everyone agrees I should be should be able to say what I want."

The worst offender in this case, however, is neither Katy Johnson nor Tucker Max. In fact, the most egregious violation is the constitutional one imposed by Floridaís Judge, Diana Lewis. The temporary injunction prohibits Mr. Max from "making use of Plaintiffís name, portrait, photograph or other likeness for any advertising and other commercial purpose". The order further applies "without limitation, to any use or inclusion by Defendant of, or reference to, the name ĎKaty Johnson,í ĎKaty,í ĎJohnsoní or title ĎMiss Vermontí in any periodicals or books, and on his website www.tuckermax.com, or at any other website owned, maintained or controlled, directly or indirectly, by Defendant."

It further prohibits Mr. Max from "disclosing any stories, facts or information, notwithstanding its truth, about any sexual or intimate act engaged in by Plaintiff" and prohibits him from linking to www.katyjohnson.com from his web site, or any other he owns, controls, or maintains, and finally, from "making any statement, written or oral, about the subject matter of this litigation."

Should Mr. Max one day own, control or maintain Annoy.com, for instance, he would have to remove the code that links the letters www.katyjohnson.com to the said URL. The clumsy language of the injunction theoretically, however, allows him to publish the string of letters www.katyjohnson.com anywhere on his site, as long as the string of letters is not hyperlinked. Despite the fact that the original complaint states Mr. Max was not given permission to link to Ms. Johnsonís web site, her permission is not actually required.

An alleged privacy argument was used by the government in United States v. ApolloMedia to try and impose a prior restraint by gagging me while simultaneously attempting to garner private information about the users of Annoy.com. A prolonged battle we fought all the way to the Fifth Circuit Court of Appeals, (and one that effectively gagged employees of ApolloMedia and my attorneys as well) finally resulted in a First Amendment victory for ApolloMedia, parent of Annoy.com.

In 2001, a misguided ruling by a Washington Judge, Robert Alsdorf, ordered the proprietors of the web site, www.justicefiles.org, to remove the Social Security numbers on the Kirkland portion the site, after the City of Kirkland filed a suit asserting that this publication of their personal information "invades their privacy interests and is causing them continuing injury."

Following the injunction, Elena Luisa Garella, (a Seattle attorney representing one of the publishers of the site), sent an email to a reporter, Declan McCullagh, detailing the basic premise of the decision. McCullagh decided to test the court by sending to a widely-disseminated email list he maintains a list of three social security numbers that were taken from the justcefiles.org web site and archiving them on his web site politechbot.com.

On May 14, 2001, The City of Kirkland's lawyers sent McCullagh a letter ordering him to delete the three Social Security numbers from his site, which McCullagh refused, and which Annoy.com, in solidarity with his position, republished. McCullagh stated the issue highlighted "how nebulous 'privacy rights' are being used to limit free expression." Garella recently, on behalf of her client, won the case.

While one can feel empathy for Ms. Johnsonís public humiliation, her own actions have done more to engender interest in this case than had she chosen to remain silent, or simply refuted the allegations on her own.

And while Tucker Max is unlikely to receive any support from the National Organization of Women, he shrugs allegations of misogyny. "I love women, I love getting laid. Misogynistic could not be further from the truth. I love their smell, their feel, hanging out with them. I love women. Men are lumpy and hairy. I love my guy friends, but with a few exceptions I much prefer hanging out with women."

Similarly, Katy Johnson, with comments like "learn how to model, so you donít waddle" -- directed at pre-teen girls seeking to become beauty pageant contestants, in addition to her MTV documentary "MADE" scheduled for June 28, as "a coach who has one month to turn a tomboy into a beauty queen" (conveniently plugged, of course, in her PRNewswire press release intended to refute Mr. Max's allegations) is unlikely to receive much support from the National Organization of Women either. Ann Coulter, on the other hand, might be available.

Diana Lewis did little more than serve as a rubber stamp for the original filing offering nothing to explain the reasons for her overreaching decision. Mr. Max was never afforded an opportunity to offer a defense or challenge any of the assertions in the original filing. The entire burden of proof, it seems, has shifted from Ms. Johnson having to prove the information was private to begin with to Mr. Max having to establish the affirmative defense of waiver.

It is still an unsettled question whether the publication of truthful private facts is entitled to First Amendment protection. Given the Supreme Court decision in Barnicki v. Vopper and other similar rulings, indicators suggest that even the High Court would likely rule that publication of the most private of information is constitutionally protected by the First Amendment.

The undeniable fact, which thankfully safeguards against ill-considered prior restraints on speech, is that the Internet facilitates an immediate means of undermining them by publication of the very material that is enjoined. On a global scale, way beyond the jurisdiction of the court issuing the order. Already in this case, mirror sites have been created, and as is evident in this case, Annoy.com is reporting and commenting on what appears to be the beginning of an important First Amendment case with more depth and with greater access than The New York Times.

Our decision to publish as newsworthy The Miss Vermont Story in its entirety along with this editorial and all the related legal documents is simple. Judges need to understand that prior restraints on speech yield detrimental consequences. All too often, the issuing of prior restraints does little more than invite violation and sharpen the focus of what may have otherwise remained in relative obscurity.

Our position is consistent with our commitment to freedom of expression, the relevance of this case to our own experiences relating to prior restraints and to point out clearly that prior restraints should not be issued and do not work. No matter how well-intended a prior restraint may be.

Clinton Fein can be reached at clinton@annoy.com

RELATED LINKS

The legal documents to date (PDF file)

The Miss Vermont Story

Katy Johnson's web site
www.katyjohnson.com

Tucker Max's web site
www.tuckermax.com

Katy Johnson PRNEwswire Release
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/06-05-2003/0001960169&EDATE=

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