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Sunday, July 23, 2006
Basketball Player Sues Yearbook After He's Indecently Exposed

A New Jersey high school basketball player has sued his school district and the editors of his high school yearbook after a yearbook photo appeared in which portions of his genitals were visible. The New Jersey Law Journal has the story:
Tyler Bennett of Colts Neck claims he suffered emotional distress because his genitals were partly visible in a basketball game picture in his 2001 school yearbook.

The suit says Colts Neck High School authorities acted slowly to suppress the yearbook, worsening the distress Bennett suffered as a senior the next year.

And there's a novel issue: Does the publisher of such a picture violate child pornography laws if publication was inadvertent?

So far, the answer to that question has been no. Indeed, the whole litigation has been a dud for the plaintiff. In 2005, a trial judge cited Bennett's lack of evidence of psychological harm and found no basis for a suit under the Tort Claims Act. On June 23, an appeals court affirmed the dismissal.

Undeterred, plaintiff’s attorney Steven Kessel notified his adversaries this month that he will seek review by the state Supreme Court. He is drafting an appeal that raises the issues anew and will set off a new round of defense briefs in the case, Bennett v. Board of Education, Freehold Regional High School District, Mon-L-4700-03.
High school athletes – like all athletes – assume certain risks when they take the court. Had Tyler Bennett been elbowed during practice, he would not have been able to recover (absent unusual circumstances). This case poses some interesting questions about the degree to which athletes assume the risk of other likely results of participating in high school sports. Here, does an athlete assume the risk that his private areas may be visible, and possibly be recorded and published by student journalists?

The most damning piece of evidence for the plaintiff?
The offending photograph, taken from a low angle, showed Bennett shooting a basket on a day he wore boxer shorts instead of an athletic supporter . . .
Hat tip to my colleague Howard Friedman for the link.


In a slightly related matter, Otis Wilson's son sued his local newspaper for defamation for allegedly repeating a rumor that Wilson had exposed himself at a high school basketball game. The Supreme Court of Appeals of West Virginia found that Wilson was not a public figure for purposes of the action, despite the fact that he was "(1) an outstanding athlete; (2) was a co-winner of the Kennedy Award [for the state's most outstanding high school football player]; (3) led his football team to the state championship; (4) received news coverage of his signing a letter of intent to accept a football scholarship from West Virginia University; (5) played in the high school championship basketball tournament; (6) his father was a former professional football player; and (7) his athletic accomplishments were posted on a West Virginia University website." Wilson v. Daily Gazette Company, 588 S.E.2d 197, 205 (W. Va. 2003).

Blogger Tim Epstein -- 7/25/2006 1:19 PM  

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