On Wednesday night, Missouri’s governor gave his State of the State address, but that evening the news quickly became more of a state of the unions address — the unions between Eric Greitens and his wife, between Greitens and an unnamed woman, and among Greitens, his party and his constituents.
Locally, KOMU, near the end of its 10 o’clock evening news, aired breaking news that KMOV Channel 4 in St. Louis had reported that Gov. Greitens had not only had an affair with a woman but also that the woman’s now ex-husband claimed that Greitens, in effect, had threatened her with blackmail.
The KMOV story includes transcripts of part of a tape-recording that the ex-husband had secretly made between him and his now ex-wife. The story is available online. On the tape, the woman discusses what had allegedly transpired between her and Greitens. Because Missouri is a one-party consent state when the question is whether a party to a conversation can legally tape-record, the man broke no law in recording that conversation without her consent.
Soon the internet lit up with stories from other news organizations, some that already knew about the story but were not disseminating it until they had more solid proof. National media such as The New York Times and CNN then started disseminating the story.
The governor admitted to the affair, which happened in March 2015. But the affair is only part of the story, which includes overtones of bondage and allegedly of Greitens taking a picture of the woman, without her consent, in a state of undress and then threatening to reveal that picture if she ever told about their sexual relations. Greitens denied the blackmail claim.
The bondage allegation is likely fodder for pundits. “Fifty Shades of Grey” too easily evokes “Fifty Shades of Greitens.” But the story’s “ick” factor is truly elevated by the overtones of possible blackmail by threatened use of a non-consensual photograph.
The legal and ethical questions arising from this situation are many. First, there is the ethical question of airing the story. In part, it’s a story about an ex-husband’s revenge. Ethically, should news organizations give him this kind of platform? Legally, so long as the allegations are true, they can be aired because the story is newsworthy.
The newsworthiness test has two parts. The first question is whether the information to be disseminated would be “highly offensive” to a “reasonable person.” The second question is whether the information is newsworthy, or of “legitimate public concern.” Even if the material’s dissemination would be highly offensive to a reasonable person, it may be distributed if it’s of legitimate public concern.
Sexual affairs of politicians used to be regarded by U.S. media as pretty much off-limits. The attitude was, perhaps, more of a European-type attitude: Politicians have their political lives and they have their private lives, and sexual matters belong in the private-life category. Some members of the media, for example, knew about sexual indiscretions of President John Kennedy but chose not to air the stories.
The 1988 presidential campaign marked a sort of tipping point on whether sexual relations fell into the private or public category. Democratic front-runner Gary Hart had a relationship with Donna Rice that sank his candidacy. A picture of them on a boat called the “Monkey Business” summed up the situation. A headline could have read: “Rice causes Hart problems.”
But Bill Clinton snagged the 1992 Democratic presidential nomination in spite of allegations swirling around him of sexual harassment and affairs, including with Jennifer Flowers, who even made publicly available for a small fee a tape recording of her purportedly talking with her alleged lover, Clinton.
Given the current political climate, could someone now be taken seriously if he or she had “bimbo eruptions,” to use Hillary Clinton’s infamous putdown?
But the allegations in Greitens’ situation go further — taking a photograph of a person in a state of partial nudity without that person’s consent and threatening dissemination of the photograph if the victim talks about the sexual relationship.
Federal law, the Video Voyeurism Protection Act of 2004, says: “Whoever … has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.”
In Missouri in 1994, the owner of a tanning salon in Buffalo got caught after videotaping 83 young women. Then-Attorney General Jay Nixon was at a loss to find a statute that covered the situation. So in 1995, Missouri passed a law that says basically the same thing as the later federal law. Missouri Revised Statutes §565.253.1, reads: “A person commits the crime of invasion of privacy in the second degree if: (1) Such person knowingly views, photographs or films another person, without that person’s knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy….”
Missouri has yet to pass a “revenge porn” law to cover situations where a disgruntled ex-partner in a relationship posts pictures of his or her “ex” in a state of nudity. A majority of states (38 or so) do have revenge-porn laws.
And then there is the overtone of alleged blackmail in Greitens’ situation.
But this story is probably less about law than about a political disaster. Arguably, Gov. Greitens suffered his sinking-of-the-Titanic moment on Wednesday night. Or maybe it was more a sinking of the Lusitania by a torpedo, a disgruntled ex-husband.
This is a personal and political tragedy for Eric Greitens. Is it the end of his political career? The Billy Bush tapes did not sink Donald Trump’s bid to be president but did cause a few rough waves. The question is whether Eric Greitens can ride out some rough waves or whether his political boat has been irrevocably swamped.
Sandy Davidson, Ph.D., J.D., teaches communications law at the MU School of Journalism. She is a curators’ distinguished teaching professor and the attorney for the Columbia Missourian.