Keeping Celebrity Divorces Quiet-Even When Fighting Publicly
Los Angeles Celebrity Divorce Lawyer Christopher C. Melcher Advises on Keeping Celebrity Divorces Quiet—Even When Fighting Publicly
There’s a reason you rarely see a celebrity divorce play out in court. After carefully cultivating their images, the last thing a celeb wants is to air the intimate details of their failed marriage in a public court proceedings.
The American media has an insatiable need for stories on celebrities. The more sensitive the information, the more value it has for publication. Google “Angelina Jolie custody” and you will find 32,800,000 results. Pictures of her children, court papers, and allegations of abuse can all be found online, resulting from a child custody proceeding largely closed to the public. Although the risk of leaked information exists in any case, no matter where litigated, access to information on California custody actions seems to flow freely and no restrictions may be placed on the parties or the press on what they can say.
Celebrity divorce lawyer Christopher C. Melcher explains how to keep a divorce involving a celebrity from becoming an out-of-control public relations disaster.
- 1. A Balancing Act: Freedom of Press vs. Right of Privacy.
Courts are open to the public and so are court records. The media a constitutional right to report on court cases. Freedom of speech and freedom of the press in the U.S. are sacred rights that easily override competing interests, except in extreme cases. These rights are founded in the U.S. Constitution.
Individuals have a right of privacy, which is usually outweighed by the public’s right to know. But sometimes the right to keep information private is more important than the need for the media to report on it.
Balancing these competing interests is necessary to determine if parts of a divorce case can be kept quiet. The safety of children or the parties is paramount, so courts are likely to seal court records or close the courtroom when information is revealed that could compromise a person’s security. The same is not true about money. Information about a person’s finances is not private enough to keep secret in a divorce, other than a Social Security number or bank account number. Billionaire Ron Burkle had legislation enacted during his divorce case to keep his finances private, but the court struck down the law as unconstitutional.
The trick, says Christopher C. Melcher, is “limit the information placed in the court file and ask the judge to protect the celebrity so they can get divorced while maintaining their privacy.”
- 2. The Risks to Celebrities and Their Families in Divorce Court.
Celebrities and their families are at risk when they enter divorce court. Their home addresses, children’s information, and routines could be revealed in court filings, giving stalkers, kidnappers, and extortionists an opportunity to find and harm them. As Christopher C. Melcher explains, “It is a huge threat to their security, but many lawyers do not think about that when preparing divorce papers. These lawyers carelessly disclose details about their clients, without thinking of the consequences.”
Besides the threat to physical security, the celebrity’s brand can easily be damaged by the divorce. Celebrities know that risk and that is why they have learned to handle their business quickly and quietly, usually announcing the split and their settlement in the same press release. In 2014, Gwyneth Paltrow announced her “conscious uncoupling” from Chris Martin, making it sound like it was a pleasant experience for both.
There will be intense media interest and the case could go on for months or years. The celebrity will be quickly judged by the media and the public.
“It is vital that the celebrity win in the court of public opinion by sending a clear and consistent message about the divorce. Otherwise, their brand will be destroyed even if they ‘win’ the divorce case,” according to top family law attorney Christopher C. Melcher.
- 3. Controlling the Risk in Court.
“It starts with the filing of the action. Consider using a pseudonym, like ‘J.D. v. S.D.’ rather than use the full names of the parties to hide or delay revealing the fact that a divorce case has been filed,” says Christopher C. Melcher. There is no authority against using a pseudonym to file a divorce in California, nor does the law expressly permit it. The only statutory authority for naming a party by pseudonym is in guardianship cases.
Perhaps more important is what to leave out of the court file. “A family law court form requires the parties to list their home address, but that information is usually not relevant to the dispute, so leave it off the form when representing a celebrity in a divorce” advises Christopher C. Melcher.
A celebrity can ask that a court file be sealed, making it off limits to the media or public to see, but those requests are rarely granted. Making a record confidential is a difficult process and judges have limited authority to grant the request. One exception is child custody evaluation reports, which are confidential by law and must be sealed on request.
A protective order or gag order may be requested in a celebrity divorce case, but it probably would not survive a constitutional challenge. Speech can be regulated in limited circumstances without running afoul of the First Amendment. Defamatory statements can be result in civil liability for damages, except as to public figures who are fair game for any amount of criticism unless the writer or publisher acted with actual malice by either knowing the falsity or acting with reckless disregard for the truth in making the statement. A celebrity is a public figure. Statements made about a celebrity in a divorce case by his or her spouse are not actionable under the litigation privilege.
Although the law might allow civil liability for defamatory speech after it has occurred, courts are powerless from stopping speech before it occurs. Such restrictions are called prior restraints, and were viewed as one of the worst forms of censorship by the founders of the U.S. It is unconstitutional for the court to order a prior restraint on speech, except for narrow circumstances such as where national security or the right of a criminal defendant to a fair trial would be threatened if the speech were allowed.
Free speech rights have also been tested in child custody proceedings. In Gilbert v. National Enquirer, Inc., a “well-known actress” and “public figure” (Melissa Gilbert) sought an order prohibiting her ex-husband (Brinkman) from making hateful comments about her to the press, in particular during the pendency of their divorce. Brinkman had allegedly threatened to destroy Ms. Gilbert’s reputation by disparaging her in the press about infidelities and substance abuse problems, if she did not dismiss him from a defamation lawsuit stemming from his earlier interview with a tabloid. Ms. Gilbert asserted that their minor child could be harmed if the threatened comments were made. The Court of Appeal in Gilbert reversed the trial court’s decision, holding that the First Amendment right to free speech outweighs the right to privacy—even though neither Brinkman, nor their child, were public figures. The Court observed:
While their son is the unfortunate bystander in this feud, we are bound by decades of United States Supreme Court precedent on the law of prior restraints. The threatened invasion to Gilbert’s right of privacy and the threatened harm to her reputation are not the sort of ‘extraordinary circumstances’ required to justify a prior restraint. [Citation] Gilbert’s remedy, if Brinkman or the Enquirer abuse their right of free speech and press, is to file a civil action for damages [i.e. defamation], as she has done here.
Christopher C. Melcher says “one of the overlooked tools we have as lawyers in celebrity divorces is to ask the judge to close the courtroom.” There is authority for closing the courtroom. There must be a reason exclude the public, which should be met when child custody issues are involved. Another technique is to agree to a temporary judge, who is appointed by the Superior Court and compensated by the parties.
“This is done often in celebrity divorce cases to keep things quiet and resolve the case quicker”, according to Christopher C. Melcher. The temporary judge has all the powers of a public judge, except cannot hold someone in contempt and there are other minor limitations. All documents provided to the temporary judge must be filed with the Superior Court and the hearings must be publicly noticed. Not everyone follows those rules, making the proceedings private in a way not authorized by law. The media could challenge that procedure.
Arbitration is possible in a family law action, which is private by nature because it a dispute resolution process by contract, not involving the public court. There are public policy concerns about using arbitration for child custody or child support matters, which might be overcome if procedural safeguards like court review are included.
- 4. Penalty Clause in Settlement Agreement for Disparaging Comments.
“When settling a celebrity divorce case, consider adding a provision for the payment of money conditioned on the other party not making derogatory statements about the celebrity for a certain term” advises Christopher C. Melcher.
That occurred in the custody dispute between Mel Gibson and his nonmarital partner, Oksana Grigorieva. They had a child together and Ms. Grigorieva claimed domestic violence. Mr. Gibson pleaded no contest to a domestic battery charge. They settled on a child support amount plus $750,000 to be paid in installments.
It was “agree[d] that any and all information and facts related to the asserted claims and events underlying this Agreement … shall remain confidential as between the Parties.” The confidentiality clause continued, “with respect to the Payments set forth herein by [M.G.] to [O.G.], any breach of the foregoing shall cause the forfeiture of the remaining balance due of the Payment.”
Ms. Grigorieva received the first installement of $250,000 and appeared on the Howard Stern show to speak about the incident. Mr. Gibson sued for a declaration that she had forfeited her right to receive any further installments under the agreement. The court held that Ms. Grigorieva lost the right to receive the remaining $500,000 because of her statements, observing that parties may contract to waive their First Amendment rights.
- 5. Many Family Lawyers are Ill-Equipped to Handle a Celebrity Divorce Case.
Every law firm needs great data security to maintain the confidentiality of client information, but celebrity divorce cases pose a special challenge. The intense interest in a celebrity divorce case creates a risk of leaks from the attorney’s office. “It is amazing how unsophisticated some divorce attorneys are about technology and how little thought they have given to protecting the security of their data” explains Christopher C. Melcher.
“At Walzer Melcher LLP, we are obsessive about information security and take extreme measures to keep anyone not authorized from obtaining information about our celebrity clients” according to Christopher C. Melcher. This requires testing the vulnerability of the system, limiting access to those who need to know, creating audit trails to know who has accessed information, password-protecting files, etc.
- 6. Conclusion.
Protecting a celebrity’s safety and brand during a divorce is possible if the attorney knows what he or she is doing. The attorney must understand the risk and manage it well. That comes through experience and caring about the client’s interests beyond the divorce.