Star’s sex tape suit is dismissed

She French-kissed Madonna on national television. She filmed her naked husband in the shower for television viewers to see. And her bare gyrating navel is on display in countless images, both video and still.

Against that backdrop, a Los Angeles judge tossed Britney Spears’ defamation lawsuit against Us Weekly, ruling that the pop star with the hyper-sexed public image cannot be defamed by published rumors that she and her husband had made a sex videotape.

“The plaintiff herself has put her modern sexuality squarely, and profitably, before the public eye,” Superior Court Judge Lisa Hart Cole said in dismissing the 24-year-old pop star’s defamation case late last week.

Us Weekly hailed the decision, with a spokesman issuing a statement that “from the outset, we have stood by our reporting.”

Spears’ lawyer, Martin Singer, did not return a phone call requesting comment.

The dispute started with an Oct. 17, 2005, article in the glossy gossip magazine reporting: “Brit & Kev: Secret Sex Tape? New parents have new worry.”

Spears and her lawyers denied there was such a tape. The article went on to state -- falsely, according to the pop star -- that Spears and husband Kevin Federline had screened the “X-rated video” in their lawyers’ office because “a member of their entourage has threatened to release raunchy footage.” As the sex tape was playing, according to the article, Spears and Federline were “acting goofy the whole time.”

Two months later, Spears filed a libel lawsuit against Us Weekly seeking $10 million and claiming that the “article is a false and outrageous fabrication” which portrayed the performer in a “despicable ... light.”

Cole’s decision did not address whether the story was true or false. But she dismissed Spears’ contention that she had been defamed.

“The issue is whether it is defamatory to state that a husband and wife taped themselves engaging in consensual sex,” Cole wrote.

And in Spears’ case, according to the judge, the answer is no, especially because the star has “publicly portrayed herself in a sexual way in her performance, in published photographs and in [a] reality show” about her relationship with Federline.

Legal experts were split over the decision.

UCLA law professor David R. Ginsburg agreed with the judge that, in this age, when everyone has instant access to video, it may not be defamatory to allege that a couple has made a private sex tape.

As the judge noted in her ruling, the standard for what is defamatory is constantly changing. Fifty years ago, merely suggesting that a single woman had sex could be defamatory. But no longer. More recently, some courts have ruled that it is not defamatory to call someone gay, because that is not inherently negative.

But Julie Hilden, a commentator for FindLaw.com, a legal affairs and research website, disagreed with Cole’s decision.

One issue, she said, was not the assertion that Spears and Federline had made a sex type but the article’s suggestion that Spears and Federline were “acting goofy” while allegedly screening the tape for their lawyers.

“I think saying you don’t take seriously the release of your sex tape to the public is significantly more defamatory than to say you made one,” Hilden said.

“If you found out your friends made a sex tape, you would just say, well, whatever,” she said. “But if you heard some neighbor stole it and was going to sell it, and your friends were like ‘Ha ha, no big deal,’ wouldn’t you think that was depraved?”

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jessica.garrison@latimes.com