The Law of Privacy in the United States and France: One President's Impeachable Offense Is Another's Invasion of Privacy

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The historic trial and acquittal of U.S. President William Jefferson Clinton, by the U.S. Senate,(1) subsequent to his equally historic impeachment by the U.S. House of Representatives on charges of perjury and obstruction of justice in connection with a sexual harassment suit and a sexual relationship he had with an intern, Monica Lewinsky,(2) was a major mass media stow around the world. As a result of a confluence of several historical, religious, and cultural factors, the mass media and the American political establishment transformed the Clinton/Lewinsky relationship into the biggest sex scandal in the history of the American presidency, a scandal which affected American law, politics, religion, mass media, culture, and workplace.(3) Not only was the Lewinsky scandal the top U.S. stow of 1998, it was among the top ten media stories in most parts of the world.(4) Clinton's impeachment and trial were the culmination of legal actions,(5) partisan political maneuvers replete with religious overtones,(6) and sensational mass media revelations.(7)

The handling of the Clinton/Lewinsky(8) affair by the American mass media and political establishment reflects the unique sociopolitical culture of the United States. This uniqueness becomes evident when the scandal is compared and contrasted with a similar extramarital relationship, a sexual "affair"(9) involving the former president of France, Francois Mitterrand.

The "affaire Paris-Match" and "affaire Gubler" actually were two intertwined scandals, one involving Mitterrand's long-running extramarital relationship, and the other a successful cover-up of the gravity of his prostrate cancer. The so-called Paris-Match affair was triggered by the publication, in the celebrity picture magazine Paris-Match, of surreptitious pictures of Mitterrand leaving a Parisian restaurant arm in arm with a teenage girl with whom he had just dined in secret. The magazine stated that the girl was Mitterrand's daughter from an ongoing extramarital relationship.

The reaction of the French political and media establishments to the revelation and the picture was outrage--at Paris-Match--for invading the privacy of the president. Mitterrand's relationship, which had started years before he became president and continued throughout his presidency, did not become a scandal. The "Gubler affair" occurred two years later, after Mitterrand had died of prostrate cancer. Shortly after the death of the president, his former personal physician, Claude Gubler, published a book, Le Grand Secret (The Big Secret), in which he claimed that Mitterrand had lied to the French people about the gravity of his health problems. The physician said that the president had been incapacitated and unfit to govern France during the last two years of his second seven-year term.

The "Paris-Match" and "Gubler" affairs became inextricably linked when Mitterrand's "two families"(10)--his legal wife; Danielle, and their two children, his mistress, Anne Pingeot, and the daughter born of the relationship, Mazarine--jointly brought suit in a Parisian court against Gubler and Plon, the publisher of the book, for invasion of privacy and breach of doctor-patient confidentiality. The lower French courts found for Mitterrand's wife and mistress and banned the physician's book. The French Supreme Court affirmed.

In view of the strikingly different outcomes of the Clinton and Mitterrand "affairs" which involved essentially the same issues-extramarital relationships and lying--it is interesting to explore the legal, political, and cultural backgrounds that led to such contrasting reactions and outcomes. Why did the Clinton/Lewinsky affair become a major historical and political scandal that deeply affected American society and provided a "shock to the [world] body politic,"(11) while the Mitterrand/Paris-Match/Gubler affair had very little or no political, legal, and historical significance in France? The aim of this article is to compare and contrast the Clinton/Lewinsky and Mitterrand/ Paris-Match/Gubler affairs and to explore the extent to which the legal, political, and socio-cultural heritage of each country determined the handling and outcomes of the affairs in the respective countries.

The first section of this article compares and contrasts the French and American legal systems and traditions. The second section analyzes the Clinton/Lewinsky scandal within the framework of the law of privacy in the United States. It shows that the consensual sexual relationship between the President of the United States and Monica Lewinsky became a major political and media scandal because America's political and social culture often balances the right to privacy with the public character of political leadership and the right to know. The third section surveys the Mitterrand/Paris-Match/Gubler affair within the framework of French privacy laws. It demonstrates that Mitterrand's extramarital affair and successful cover-up of his grave illness are rooted in French political culture which values individual privacy above freedom of the press and the right to know. The article concludes that from the perspective of freedom of speech and of the press, the American model of individual privacy often is the recipe for sensationalism and media excesses, while the French model, by subordinating freedom of the press to the right to privacy, unduly restricts the right to know.

I. COMPARATIVE OVERVIEW OF THE AMERICAN AND FRENCH LEGAL SYSTEMS

The legal systems of the United States and France can be said to belong to two different legal "families."(12) The United States has the common law or Anglo-American legal tradition that originated in England. Under this system, jurisprudence is based upon general principles found in judicial decisions(13); it generally is judge-made law. Though the United States is said to have one of the most elaborate common law systems in the world, most American law now is statutory law.(14) In the American system, under the doctrine of judicial review, courts have the power to declare statutes unconstitutional and to interpret laws. The U.S. Supreme Court has the power to hold acts of other branches of government,(15) as well as state statutes, unconstitutional.(16) The Court also can review the judgments of state courts in cases that fall within the federal judicial power.(17)

The French legal system operates in a different fashion. France is part of the civil law system that stands in contradistinction to the common law system. The civil law system sometimes is called the Romano-Germanic legal system, to differentiate it from the Anglo-American system.(18) Historically, civil law was based on legal codes that originated with the Romans.(19) Today, civil law is based on the codification of general legal rules and principles in statutory law. In the civil law countries, legislation is regarded as the primary and ultimate source of law, and the basic legal document is the civil code. This document sets the tone for the entire legal system.(20) In civil law countries, judges interpret articles of the code to arrive at legal decisions in specific cases. Such interpretations, however, do not become authoritative legal precedent for subsequent cases. All future cases are based on fresh interpretations of the code without reference to prior judicial interpretations.(21) Another very important difference between the two legal systems is the presumption of innocence of accused persons. In the common law system, an accused person is presumed innocent until proven guilty, and the burden of proof is on the prosecution. Over the years, the French system has steadily moved away from a presumption of guilt to a presumption of innocence.(22) Unfortunately, the new law strengthening this presumption of innocence makes it a criminal offense for the press to publish pictures of a person in handcuffs if that person has not been found guilty by a court of law. It also is illegal to take pictures of crime scenes if they "violate the dignity of a victim."(23)

II. THE CLINTON/LEWINSKY SCANDAL AND THE RIGHT TO INDIVIDUAL PRIVACY IN THE UNITED STATES

What came to be known around the world as the "Clinton/Lewinsky scandal" or the "Lewinsky affair" started in 1992 with a revelation in the New York Times that while governor of Arkansas, then presidential candidate Bill Clinton had been involved in an alleged conflict of interest. He and his wife were alleged to have been involved in a land development scheme called Whitewater, together with a savings-and-loan operator whose bank, Madison Guaranty, was regulated by the Clinton administration in Arkansas.(24) The Whitewater affair caught up with Bill Clinton after he was elected president of the United States and the failed savings-and-loan company that had financed the whitewater land deal was being investigated by federal regulators. In 1993, Vince Foster, the white House lawyer who had handled the whitewater deal for the Clintons, committed suicide in the White House. Attorney General Janet Reno appointed a special prosecutor to look into the Madison Guaranty whitewater matter.(25)

In the meantime, in 1994, an obscure magazine, The American Spectator, published an article alleging that while he was governor of Arkansas, Bill Clinton had used state troopers to procure women for extramarital sexual relations. In 1994, two years into his first term, Paula Corbin Jones, a former employee of the state of Arkansas, filed suit against President Clinton for sexual harassment that allegedly occurred in 1991 while Clinton was governor of Arkansas.(26) Clinton sought temporary immunity from the suit, claiming that the alleged sexual impropriety occurred years before he became president. A U.S. district court granted the president temporary immunity from the suit until after he left office.(27) The U.S. Court of Appeals for the Eighth Circuit reversed the immunity.(28) Clinton appealed to the U.S. Supreme Court which granted certiorari and held that the U.S. Constitution did not afford the president temporary immunity from civil litigation over matters that took place before he assumed office. The Court held that the doctrine of separation of powers did not require federal courts to stay all private actions against the president until after he left office.(29)

As soon as Jones' sexual harassment case got underway, Jones sought to show the federal district court in Arkansas that Clinton had a habit of sexually harassing women. While the Jones case was at bar, Clinton got involved in a sexual relationship with Monica Lewinsky, a former White House intern. Monica confided in Linda Tripp, a disgruntled former White House aide, and gave her details of the sexual liaison with the president. Unbeknownst to Lewinsky, Tripp secretly tape recorded their conversations and handed the tapes to Paula Jones' lawyers and to Kenneth Starr, the independent counsel(30) who had been appointed to investigate the Clinton's involvement in Whitewater.(31) Lewinsky filed an affidavit stating that she had no sexual relationship with the president. Clinton later made a videotaped deposition in the Jones case in which he denied having a sexual relationship with Lewinsky. Lewinsky's affidavit and President Clinton's deposition turned out to be less than truthful.(32)

Knowing that Lewinsky had filed an affidavit that contradicted what she had said on tape to Tripp, Start threatened Lewinsky with prosecution for perjury if she did not cooperate with his office. She entered into an immunity deal with the independent counsel's office and revealed in great detail the extent of her relationship to President Clinton, including the existence of a semen-stained dress.(33) In the face of these revelations, Clinton reluctantly admitted having "an inappropriate intimate contact" with Monica Lewinsky.(34)

In September 1998, Kenneth Start submitted a report of his investigation to a Republican-led House of Representatives. The report or referral recounted in minute detail, and with sickening and voyeuristic exactitude, specific sexual acts between Monica Lewinsky and President Clinton.(35) In the referral, Starr concluded that there were eleven grounds for the impeachment and removal of Clinton from office.(36) The House of Representative approved two of the four articles of impeachment. The articles charged that Clinton had engaged in perjury and obstruction of justice. As per constitutional stipulations, the matter was sent to the U.S. Senate, where Clinton was tried and subsequently acquitted of the charges of perjury and obstruction of justice.

The legal action brought by Paula Corbin Jones against the president for sexual harassment, the expensive investigation of the sexual relationship between the president and Lewinsky by Independent Counsel Kenneth Starr, as well as publication of the graphic details of the sexual relationship in the report made available on the Internet,(37) put the issue of the private sexual activities of public officials on the world stage. The question asked most often around the world was whether the United States had no laws protecting the privacy of its elected officials.

To appreciate the amazement with which millions of people around the world followed the Clinton/Lewinsky scandal, the outcome of the Clinton scandal is compared and contrasted with the outcome of the intertwined sex and deception affair involving Francois Mitterrand, president of France. The Clinton/Lewinsky scandal and the Mitterrand/ Paris-Match "affair" provide a unique opportunity to compare and contrast the individual privacy law regimes of the United States and France as they apply to elected public officials, as well as the sociopolitical cultures within which the two legal systems have evolved and now operate.

III. SEX, LIES, AND PICTURES: MITTERRAND, THE PARIS-MATCH AND GUBLER AFFAIRS, AND THE RIGHT TO PRIVACY IN FRANCE

In November 1994, Paris-Match, a French picture magazine …