So: Why won’t The Post show you these photos — and why has the Daily News asked some Web sites to remove images that it exclusively secured? Jenner, a legendary Olympian and reality-show star in the middle of what appears to be a gender transition, is a public figure. Such photos are arguably newsworthy — Jenner is in what seems like an endless publicity push ahead of an interview with Diane Sawyer set to air on Friday. And people, at least some people, probably would want to see them.
But there are a number of problems — journalistic, legal and maybe ethical — with showing just any old photos that surface of someone purported to be Bruce Jenner in a dress. Among them:
1. Is that really Bruce Jenner in a dress?
While Jenner hasn’t publicly commented on the dress photos, there are credible reports that he called police on the paparazzi who allegedly took them. This might lead a reporter to assume that, if Jenner called the Los Angeles County Sheriff on photographers allegedly using unlawful methods (more on those later) to photograph him allegedly wearing a fetching black-and-white ensemble with horizontal stripes, the photos published by the New York Daily News shortly following said call are the real McCoy.
But: What if they’re not? The Fourth Estate doesn’t like to engage in libel — and, more to the point, make itself vulnerable to defamation or invasion of privacy lawsuits. Had Jenner confirmed his penchant for horizontal stripes — tweeted, Instagrammed, Facebook-ed, issued a statement through a spokesman — this would be a very different kind of article.
2. The photos appeared in the New York Daily News.
Let nothing that follows be taken as a slight on the character of the New York Daily News. It’s been around since 1919. It was America’s first tabloid. Its editorial board won a Pulitzer for a series about Sept. 11 victims. And if nothing else, these guys make a great front page. But let’s face it: The Daily News is not the New York Times. This is a paper that wrote the headline “House of Turds” for a story about Congress’s role in the 2013 government shutdown.
Does that mean the Daily News isn’t trustworthy? Of course not — but as of early Wednesday, it seemed to be the only publication out there with those alleged Bruce Jenner dress photos on its Web site. (Some snatched the photos from Twitter and are embedding them, still a risky proposition — more on this later.) So: If the alleged photos of Jenner had appeared (or had been picked up by) a different publication and, preferably, publications — the New York Times, Reuters, the Associated Press — this would be a very different kind of article.
3. The photos might have been taken illegally.
California — home to or stomping ground of many a celebrity harboring intense hatred of the paparazzi, including but not limited to Sean Penn, Jennifer Garner, Matthew McConaughey and Kanye West — tolerates photographers hounding the uber-famous for snapshots, but just barely. There are a number of laws that govern the behavior of someone who really wants to, say, take a picture of Britney Spears emerging from a limousine with no underwear. Since 2013, for example, it’s been against the law to take photos of a public figure’s child.
More relevant to Jenner: Since 1998, the law allows “photographers to be found liable for invasion of privacy if it is proved that they trespassed or used telephoto lenses to capture images of people engaging in personal or familial activity, and provides for hefty damage awards against both photographers and their organizations,” as the very trustworthy New York Times reported at the time. And allegations have surfaced that those who allegedly shot the alleged Jenner photos did indeed use telephoto lenses.
“The photographers were camped out on a nearby hillside using telephoto lenses to snap pictures of Bruce in his private space, which is illegal,” according to Yahoo, which did not publish the photos. “… Jenner could likely get a restraining order against those paparazzi or sue if he wants.”
But it’s not just the fellows camped out on the hillside with fancy camera gear who are liable: It’s the papers they work for.
“CNN, which did not have the right to broadcast the dress photograph, has received flak for airing the controversial shot in what seems a thinly veiled effort to scoop rival ABC,” Yahoo wrote. “Don Lemon used it to lead a panel discussion for the segment ‘Caught on Camera: Bruce Jenner’s New Look?’ to discuss what Jenner’s revelation means for the transgender community.”
If the photos had been taken at a Jenner-approved photo shoot — or at least on public property — this would be a very different kind of article.
4. What if Bruce Jenner doesn’t want us to see photos of him in a dress?
Kim Kardashian — Jenner’s stepdaughter — is not the foremost authority on transgender issues. Yet, in a recent Entertainment Tonight interview, she offered some words of wisdom.
“I think everyone goes through things in life, and I think that story and what Bruce is going through, I think he’ll share whenever the time is right,” she said. “I feel like that’s his journey to talk about.”
Sure: Bruce Jenner is a public figure. But he is not President Obama or Edward Snowden or — perhaps a more relevant example — Chelsea Manning. And, since nothing about Bruce Jenner (or the Kardashians, for that matter) is vital to national security, it’s hard to claim questionably obtained, possibly embarrassing images of him are vital to the public interest. No matter how much anyone wants to see that dress.
Reached for comment, Sharon Waxman, editor of the Wrap — which posted a CNN video of the photos — said the Web site took down the video at the request of the New York Daily News.
“My understanding is the Daily News counsel wrote to say they had licensed the photos exclusively,” Waxman wrote. “I believe CNN used them in error, and we picked it up from there. We took the photos down as soon as we were notified.”
The New York Daily News and Mediaite, which also took down the images, were not immediately available for comment.
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