The Peach Lady Sues
[A version of this story appeared in The New York Observer, Feb. 12, 1996.]
By Aaron Barnhart
It was Steve Allen who discovered you could entertain America just by pointing a camera at the street and having fun at the expense of passers-by. Two decades later, one of Mr. Allen's early fans, David Letterman, took this simple insight to its logical end and declared that obscurity trumped celebrity. Whether hosting Stupid Human Tricks from his stage, showing dumb ads from local newspapers, or taking his cameras to the streets in search of the unusual and the bizarre, Mr. Letterman's late-night program consistently showed that the best comedy often came without a script and with unknown, non-union help.
But now one of those anonymous victims of Mr. Letterman's humor -- the woman known as the Peach Lady, who was caught on camera in the act of eating a peach at the U.S. Open last summer -- has struck back with a lawsuit filed in Stamford, Conn. superior court on Jan. 29.
The woman, a resident of New York's Upper East Side named Jane Bronstein, charges that Mr. Letterman violated her privacy in repeatedly airing the unflattering image. The host also "publicly ridiculed and vilified" her during these airings as well as when he launched an ill-considered nationwide campaign to find her.
As many readers of this newsletter may recall, the trouble began last summer when CBS cameras at the U.S. Open tennis tournament caught the plaintiff slowly and not very gracefully working her way through a sack lunch. The resulting video clip was picked up by Mr. Letterman's staff, along with additional clips of the spectator's ungainly repast, and were dropped in at regular intervals throughout a broadcast that aired in early September.
What happened next, however, was unusual even by Mr. Letterman's standards and called into question his tendency, which became pronounced upon his arrival at CBS in 1993, to make every stranger who crosses his path an accomplice to his enormous celebrity. For the next two weeks, the clip of the woman chewing sloppily on a peach was put into nightly rotation on Late Show, to increasingly louder cheers from Mr. Letterman's studio audience. When that failed to rouse her from the woodwork, Mr. Letterman broadcast the clip on the Times Square Jumbotron along with a 1-800 number and -- quoting the lawsuit -- "request[ed] viewers of the Late Show to participate in a plan to identify and locate the plaintiff."
At that point the woman's attorney, Harvey J. Rothberg, contacted Mr. Letterman's staff and asked them to stop broadcasting her image on their show. That request was granted immediately, but Mr. Rothberg also insisted that Mr. Letterman make a private apology to his client, agree not to rebroadcast shows in which her image appeared, and pay damages.
In response, Mr. Letterman's lawyers offered only to make a charitable contribution on the Peach Lady's behalf, insisting that the satire was done in good taste. They also asserted that the comedian's First Amendment right is "fundamental" and "must be safeguarded," and that "the law does not recognize any claims for hurt feelings."
The lawsuit, which clearly hopes to check Mr. Letterman's free-speech claim, finds him and his company, Worldwide Pants, in violation of sections 50 and 51 of the New York Civil Rights Law -- the criminal and civil provisions, respectively, of the state's right-to-privacy act. Ken Lerer, counsel for Worldwide Pants, pointed out that the company had acted in good faith and complied promptly with the cease-and-desist order.
Contacted at his Connecticut offices, Mr. Rothberg took pains to distinguish the Peach Lady's suit from others filed in the past against Mr. Letterman, most of them by public figures such as Martha Raye, the late comedienne who was appearing in TV commercials as a confessed "denture wearer," when Mr. Letterman jokingly called referred to her as a "condom wearer" on his NBC show in March, 1987. (The suit was thrown out.)
By contrast, Mr. Rothberg says, his client is not a public figure, but a private citizen unwillingly dragged into the spotlight by Mr. Letterman. But what about the broadcast waiver printed on the back of every U.S. Open ticket, which advises that spectators' images may be used "incidental" to any "transmission or reproduction of the tournament"? Mr. Rothberg characterized it as "very limited" and said it did not cover the "vile and vicious" uses of the video clip.
Ironically, the attorney for the Peach Lady says he was inspired in part by The Right to Privacy, a new book co-authored by Ellen Alderman and Caroline Kennedy, whose uncle Ted is a frequent butt of Mr. Letterman's jokes. But reading from the opening count of the lawsuit, Mr. Rothberg suggested that privacy considerations alone were not cause for the litigation:
"'The plaintiff ... is a married woman 54 years of age suffering from the effects of childhood polio, two spinal fusions and a thyroid condition.' In other words, they picked the wrong woman. This lady has been a victim all her life, and now she's a victim of David Letterman. And it should be stopped."
A postscript. During a broadcast of his HBO program last Friday, comedian Dennis Miller apologized to a man for making a joke at his expense on an earlier Dennis Miller Live. Miller had flashed a picture of the man drinking from a bottle during his "Big Screen" segment on a show that aired last August and said, "Nothing beats the heat better than drinking your own urine." The apology fends off a lawsuit from the man, who was in fact enjoying a swig of milk when the picture of him was snapped.
(Thanks Don Giller for checking facts)
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