by Diane Capri
The case involved an obnoxious abuse of privacy by a newspaper that was, to my mind, better left to sink into the pit of sordid, unnoticed comment. This might have happened. Except that Nelson Newton had decided, literally, to make a federal case out of it.
Both parties involved in the case left a lot to be desired. The plaintiff, Nelson Newton, was a notorious local lawyer with political aspirations.
Politics as a motive for unsavory behavior seemed to be consuming my work life as well as my home life, I noted sourly.
The defendant, The Whitman Esquire Review, was a radical alternative scandal tabloid that, but for the First Amendment, would have been put out of business long ago by an outraged public interested in decency.
It was a mark of our decline as a society that Americans consumed the tabloid’s salacious details with the same guilty pleasure that we devoured more than twenty quarts of ice cream every year.
Unlike when I practiced law and could choose my cases, as a judge I couldn’t reject matters I found distasteful. This dispute, over the extremely radical practice of “outing,” didn’t belong in the public forum of my courtroom.
“Outing” was a nice name for the outrageous practice of printing true information disclosing sexual preferences that law-abiding citizens preferred to keep private.
Such information wasn’t meant for public consumption, in my view.
I had trouble not only with what The Review chose to say, but also with their right to say it. Everyone was entitled to some privacy. And those involved should get to decide both whether their most personal secrets get shared and with whom.
That said, a trial was not a process designed to protect anyone’s privacy. Trials are open to the public and frequently reported in the mainstream media. If The Review should not have printed the offending piece in the first place, as Newton claimed, airing the dispute in a public trial certainly wasn’t going to put the cat back in the bag.
I picked up the last of six pleadings files looking for the final pre-trial order I had entered on the case outlining the parties’ expectations for proofs at trial. Broadly speaking, this was a defamation case; count one alleged libel and slander, and count two alleged breach of the private facts tort, claiming obliquely that The Review and published private matter about Newton without his consent.
The case was in federal court because the parties were citizens of different states. Newton was a Florida citizen and The Review was incorporated and had its principal place of business in San Francisco.
The Review, Newton claimed, had wrongfully reprinted anonymous local gossip in a blind column labeled About Town. Newton alleged that everyone in his business circle knew the offending story was about him, causing him great personal harm.
What Newton didn’t say was that the story would likely cost him votes if he ran for mayor, which, rumor was, he planned to do in the next election. Newton claimed that The Review printed pure gossip with malice, that is, with reckless disregard for its truth or falsity, and that the story had harmed him to the tune of $25 million.
Usually, my work absorbed all of my attention. I served the judicial system and, thus, did something important to society. But tonight, the only thing important to me was George. Absently, I rubbed the purple lump on my head and tried to concentrate.
The Review denied any wrongdoing and stood by their story, which had appeared in the popular but gossipy “Mr. Tampa Knows Best” column. Truth, they said, was Mr. Tampa’s absolute defense
The idea struck me as absurd, even if it might be legally correct. Sometimes truth was the most hurtful thing one could disclose about another, I knew.
Alternatively, The Review argued that it printed the story without malice and was not liable because Mr. Newton is and has been a public figure.
Well, I wasn’t so sure about that, but I had ruled earlier in the case that whether Newton was a public figure or not was for the jury to decide. Public figures, too, should be allowed a personal life.
Since trial court judges are not required to be without opinions, I had mine about the case and the practice of outing. Aside from the titillation factor, what possible difference could an individual’s sexual orientation make to the public at large? Even if Nelson Newton is gay, which he denied, so what?
The world wouldn’t stop. Being gay is not a crime. It wasn’t even a problem with his marriage, since Newton wasn’t married. Not now anyway. Wife number four left him just before the story appeared. Indeed, that was one of the facts cited in support of the truth of the story by the paper.
Thumbing through the stuffed file folders, I noticed two things that exacerbated my headache: the witness lists took up three single spaced pages and Newton was representing himself.
He might, as the old adage goes, have a fool for a client but what it meant to me was a longer than normal trial with many more opportunities for reversible error and a serious strain on my limited judicial resources.
I’ve had cases with Nelson Newton before. He can’t say his name in less than twenty minutes. Just the thought of him representing himself through three pages of witnesses made me tired.
I pulled out the offending news story that became indelibly imprinted on my brain in the next few weeks and read it again.
What prominent Tampa lawyer lost wife number four and won’t get married for a fifth time because he likes men better? Those in the know have seen him in the locker room with his hands where they shouldn’t be. Shame on you, Mr. N., for staying in the closet. You should have the courage to be who you are.
The item contained few facts. I wasn’t sure how The Review planned to prove the story was true and I wasn’t really interested. Federal judges shouldn’t become embroiled in personal privacy issues like this one.
The Review, a very radical gay paper, had been publishing a series of articles “outing” gays all over the country, and particularly on October 11, dubbed “National Coming Out Day.” They employed stringers in each major market to add what they called “local color” to the stories.
“Mr. N” was only one of several items The Review had published along similar lines, but Newton was the only subject who had sued in my courtroom. If avoiding unfavorable publicity was Newton’s true goal, making the case a media event in Tampa wasn’t the way to do it.
Had Newton been a different sort of guy, I’d believe his motives pure. To educate the public, say, or to promote privacy rights, which I, for one, believed in.
But this was Nelson Newton—a publicity hound of long duration. He had a hidden agenda here. And I didn’t like being used to foster it, whatever it was.
I was a public servant and Newton was a member of the public. Open access to the courts gave him the right to be in my courtroom for the small filing fee, a concept I normally supported; but cases like Newton’s forced me to reexamine.
I’ve never been able to divorce my desire to serve the judicial system from the practical effects of its failures.
In this case, Newton had the right to sue, but he was manipulating the process for his own ends. When litigants did that, and it happened all too often, my patience barked at the end of a very short leash.
I glanced at my watch. It was getting late, but George hadn’t returned.
Dragging my attention back to the file, I examined the exhibit lists, reviewed the trial briefs and then the proposed jury instructions submitted by both parties. Somewhere along the way, finally, I was able to lose myself in the work.
Before I knew it, I’d worked right through dinner and George had never come home.
I called down to the kitchen and ordered a late night snack to be sent upstairs, which is one of the great perks of living over a restaurant. While I waited, I turned on the news. Nothing new was reported on General Andrews’s death or anything else of interest.
Following my meal, I soaked in my tub for a while, read a recent novel and then my eyelids became too heavy and I finally admitted to myself that I was too tired to wait anymore.
&n
bsp; When I turned out my bedside lamp at about one o’clock, I closed my eyes and thought about George.
Why was he acting so strangely?
Worried about him, about us.
I could still visualize him on the first night we met, when George became the center of my world and changed my life forever.
I was just seventeen, a gawky, unsure freshman at the University of Michigan. He was a senior and, for some reason, became interested in me. We’d both attended a screening of The Thin Man, the old William Powell and Myrna Loy classic, shown on campus by the film society. In the days before videotaped movies were widely available, viewers had to wait to see their favorite stories, and this one was a rare treat.
I was consumed by the old movies I’d watched with Mom during the long weeks of her final illness. The Thin Man had been one of her favorites and experiencing it again made me feel closer to her. The story is a comedy that never failed to make me laugh and recall our happier times together.
George approached me after the film, asking if I’d like to get a coffee. Oddly, I wasn’t nervous. George made me feel so comfortable and relaxed and, inexplicably, at the same time, my body fairly hummed with sexual tension. The feelings were delicious and I reveled in them. A sexy, good-looking man showing interest in me was, at that time, a new experience.
We discussed the movie for hours that night, and we identified more than forty films that we both loved. George looked so much like William Powell, well, I guess we just got caught up in the moment. He always claims he was smitten by love at first sight, but George never had to kiss the Blarney Stone to be full of charm.
Still, he’d rescued me from myself at a time when I badly needed rescuing. My mother had died the year before and I felt adrift trying to find my way in the world. George’s arrival always seemed sent from heaven. Mom would have loved him, just as everyone else does.
Even then, I’d believed he was perfect for me. Of supreme importance to my teenaged self was that he was taller than I. At five feet eleven, I’d towered over most boys in high school. I walked around with my shoulders hunched to look shorter. Like a big-footed puppy, I hadn’t grown into myself yet.
After that first night, we became inseparable. Going to the movies became one of the many passions we shared. George was then, and is now, an excellent lover. He’s funny, intelligent, kind. He’s always been my best friend. Since we met, I’ve never preferred the company of any other person as much as I loved being with my husband.
I had always enjoyed the fantasy of the two of us cocooned in ourselves, joined against the world outside. Until recently, that illusion had thrived.
Now, our marriage had turned into a fishbowl of thick, murky water that obscured my senses.
For the first time ever, I could feel the knots in my stomach as I worried about George and I was afraid for us.
George was a political player, but he’d gotten so invested in this battle. His recent behavior was completely different from his usually detached manner of dealing with life.
He’d spent long nights with the party chairman, working with Jason whenever possible. Even, I found out today, working closely with Senator Warwick, a man whose ideology and personality George detests. I’d heard him on the phone, many times late into the night, talking to all of the senators he knew personally, urging them to vote against Andrews.
Now, after everything that had happened, I actually suspected he’d attempted to meet with the President. This sounded farfetched, except that George knew President Benson. Politics is like any other world. If you stayed in it long enough, eventually everyone you knew in your younger days rises to positions of power and influence by processes of aging and attrition.
My scratchy eyes objected to one more waking moment. I closed them just to rest.
What I didn’t understand was why defeating the Andrews confirmation mattered so much to George. He believed Andrews was not suited to the job, and we’d talked for hours about why. But a lot of people aren’t suited to their work — like my boss the Chief Judge for instance — and it never seemed to bother George.
The strain had turned George into someone I didn’t recognize. And maybe he felt a little guilty. If Andrews did kill himself, George would feel at least partly to blame because he’d tried so hard to defeat Andrews’s nomination. George desperately wanted to win the fight against Andrews, but not at the cost of the man’s life. Surely.
CHAPTER TWELVE
Tampa, Florida
Sunday 6:05 a.m.
January 23, 2000
THERE IS A SCIENTIFIC explanation for why time seems to pass more rapidly as we age. According to this theory, we humans measure time against our experience. The older we get, the more experiences we have and thus the shorter a year seems in comparison. Or ten years.
This is a great theory and it’s probably even true, but it doesn’t explain why time passes so slowly when you want terrible things to be over.
Awakened too early, groggy and heavy-eyed from lack of restful sleep. My mind had churned all night and I felt as if I hadn’t slept at all.
Felt the weight of George’s body on the bed next to mine. He’d come home some time during the night and was snoring soundly. I eased out of bed, thinking that if he got enough sleep, he might return to his old self today.
I stood there, looking at this man who, in many ways, had become a stranger to me. This guy looked like George, for the most part. He wore George’s silk boxers just now, the ones I gave him for Valentine’s Day with the red hearts on them. But he was obviously someone else. This man had been short-tempered and consumed by politics; he’d ignored his restaurant and our dogs; and he’d barely held a reasonable conversation with me, or anyone I knew, for several weeks.
My George is patient, kind, loving and full of that old concept: honor.
My George sleeps in pajamas.
I crept out into the kitchen and put on the coffee, whispering to Harry and Bess to be quiet as I let them out the back door and picked up the newspapers off the porch. We get three newspapers every day, the two local ones and The Wall Street Journal. On Sunday, we also subscribed to the New York Times.
By the time Harry and Bess got back, my coffee was done. Cuban, strong and sweet, my caffeine of choice. I took my papers and coffee mug, the green one George had given me that said I Hate Mornings, out to the veranda and sat at the table overlooking the bay, the dogs at my feet.
The sun was just starting to peek through the horizon again. Sunrises are truly glorious miracles even though I prefer to sleep through them. This morning, I tried to appreciate the pinks, oranges and blues in the sky. That’s hard to do when your eyes are closed.
The headlines were much as I expected. ANDREWS COMMITS SUICIDE. Barring some terrorist airline hijacking, the death of General Albert Randall Andrews would be front-page news everywhere today.
Everything above the fold dealt with Andy’s death and, for the first time, they had printed the note he left in his study before he went out to the boat to kill himself. The unwelcome tears that had seemed so near the surface for the past few days sprang to my eyes as I read the note. I told myself my vulnerability was due to exhaustion as I blinked the tears away, replaced my unusual sensitivity with stronger curiosity that felt more comfortable, and read the note again.
CHAPTER THIRTEEN
Tampa, Florida
Sunday 6:50 a.m.
January 23, 2000
GOODBYE MY DARLING DEBORAH. Please take care of our children. Make sure they understand how much I’ve loved them all. I can’t continue under such traitorous attacks, especially from friends and colleagues. I’d planned to serve my country once again as a Supreme Court Justice. Now, this Old Soldier’s career is over.
All three papers carried essentially the same story on the front page, which had been picked up from the local papers by one of the wire services.
I read through the stories with the critical eye I normally reserved for legal briefs. General Andrews was fo
und dead after suffering a gunshot wound to the head early yesterday morning. His body was discovered in the fishing boat that was tied to the dock behind his Lake Thonotosassa home. Andrews habitually fished each night, the report said, and his home was so remote from others that no one heard the gunshot.
The operating theory was that General Andrews had placed his revolver to his right temple, holding the gun in his right hand, and pulled the trigger.
Andrews was survived by a wife, two sons, one daughter, a son-in-law and no grandchildren.
The papers rehashed the low points of the recent confirmation hearings. They speculated that the contentious hearings and the potential vote against him were the reasons for the general’s suicide.
Senator Warwick was quoted: “It is a tragedy that the Republic should repay him for his decades of service by publicly humiliating him to the point where he felt he had no choice but to take his own life.”
There was more in this vein for about six column inches, which I dismissed as the worst sort of public grandstanding, particularly when I knew Warwick’s real views on Andy’s appointment. Honest politician. Now there’s an oxymoron.
The local papers carried a number of stories and columns about Andy’s contribution to the community, his charitable activities and his commitment to education. There was even a story on the sports page about yesterday’s Blue Coat golf tournament. I was mildly amused to see that one of the teams had been disqualified, my group had come in fourth and our designated literacy program would get $2,500 prize money.
I’d refilled my coffee mug several times and the sun was moving quickly toward the yardarm, as the pirates who once sailed these waters are believed to have said, when George finally joined me in his bathrobe. He brought his own coffee he detests mine and rubbed his stubbled face across my cheek before he sat down across from me at the table.
