Federal Court Tosses Case of ‘Flasher’s Remorse’

Federal Court Tosses Case of ‘Flasher’s Remorse’
Rhett Pardon
BALTIMORE — In a ruling of particular interest to adult filmmakers and photographers, a federal judge has decided that a woman captured on film while exposing her breasts at a public event can’t sue a publisher for including her photograph without consent.

Tonya Barnhart, in a case of “flasher’s remorse,” appealed to a higher court after she sued and lost her case against Easyriders magazine publisher Paisano Publications for invasion of privacy.

The photo of a topless Barnhart appeared in a section of Easyriders devoted to the “exhilaration” of the motorcycling lifestyle.

Barnhart, 29, lifted her shirt at the Toop’s Troops 2nd Annual Pig Roast, an August 2004 fundraiser attended by motorcycle enthusiasts. At some point during the day women began removing their shirts in return for being given beads.

Barnhart, swept up by the Mardi Gras-atmosphere, was hoisted onto the shoulders of two men and voluntarily lifted up her shirt. At that moment, freelance photographer Bill Cromwell snapped a photo of Barnhart in her exposed state. He later submitted that picture to Easyriders, and it was published in the magazine’s March 2005 edition.

After a lower court rejected her claims, U.S. District Judge J. Frederick Motz ruled Barnhart did not have a triable claim under any privacy theory and summarily dismissed the case.

“Plaintiff’s lifting up of her shirt cannot reasonably be said to have constituted a private act” since the pig roast was “an outdoor fund-raising event open to any member of the public who purchased a ticket,” Motz wrote in an opinion handed down in mid-October.

“According to plaintiff’s own estimate, about 200 people were present at the event. Although she alleges that at the moment she removed her shirt she was in the company of only about 10 people, all of whom she knew and trusted, the fact remains that she exposed herself in a public place where anyone could have seen her.”

Motz, in the opinion, cited two cases — Furman vs. Sheppard, 744 A.2d 583 and in Solomon vs. National Enquirer, 1996 W.L. 635384 — that both mandate the entry of summary judgment for defendant on plaintiff’s seclusion and unreasonable publicity claims.

He also referred to another case involving “Girls Gone Wild,” in which a Louisiana judge allowed two women videotaped in a New Orleans bar to proceed with a privacy claim. But Motz said that was distinguishable in part because the “plaintiffs alleged that they had been photographed only ... after being told that they would not appear on any ‘Girls Gone Wild’ video.”

Motz noted that courts in other states have upheld similar claims involving publicity that unreasonably places another in a false light before the public against two adult magazines, Chic and Hustler. But the plaintiffs in those cases — Braun vs. Flynt, 726 F.2d 245, 247 and Douglass vs. Hustler Magazine, 769 F.2d 1128 — presented evidence demonstrating the degrading and lewd content of the magazines.

The case is Tonya Barnhart vs. Paisano Publications LLC, No. JFM-06-318.