Monday, May 11, 2009
Fox News is reporting that Alysha Castonguay, Miss Rhode Island 2009, appeared semi-nude in the magazine Maxim, but disclosed the photographs to Miss USA officials, who did not disqualify her.
The situations with Miss California and Miss Rhode Island are different, as Cassandra has and will no doubt point out (scroll to the bottom of the comments). Castonguay was not under 18 years of age when the Maxim shoot was done, and she fulfilled her contractual obligations at execution, letting pageant officials know about the photos. Still, there is the matter of equitable treatment, and without knowing all of the details, there is the appearance of one set of rules for Carrie Prejean and one set of rules for everyone else.
"Castonguay even told gossip site TMZ that she felt Prejean was being targeted simply because she answered her pageant question by saying she favored limiting marriage to a man and a woman.Let me say that if Carrie Prejean is, er, stripped of her title, and a law suit results, and a detailed review of all similarly situated pageant contestants is required, I will volunteer my expert testimony (and waive my usual consulting fee). Will it come down to empirical calculations of what per cent total body surface area was revealed in each photo? Does anyone know of any software out there that calculates such figures?
"'I personally believe this situation is stemming from the controversy over her opinion and not a photo,' Castonguay said."
I had seen the Miss RI thing earlier. Without knowing how her contract was written, it's hard to say what the deal is.
There are all kinds of reasons one might not sue to enforce contractual obligations (or fire an employee who fails to live up to them). Litigation costs are one pretty darned good reason. But this is why there is no affirmative "duty to enforce". A contractual obligation is like a right - you can avail yourself of it, or not. You don't HAVE to avail yourself of it, and you can also waive it.
I'm not sure conservatives want to assert that all obligors waive the right to assert/enforce contractual obligations just because one obligor has in the past. Is this really a "conservative principle"? That we can get out of any contract we want to if others breach their contracts and the obligor doesn't sue/fire them?
The principle I find interesting here is that conservatives seem to be saying that it doesn't matter what you promise in a contract (i.e., what you offer up as consideration). It's OK to take money on the strength of false representation and it's OK to break your word (and violate your contractual obligations) if you're willing to "stand up" for conservatism.
I can't help wondering how this logic would fly if Ms. Prejean had "stood up" for gay marriage and it were progressives defending her? Would she get a pass on her contractual obligations too from conservatives - you know, because of the principle of the thing?
Or are we applauding what is essentially tribalism (we always stick up for "our side", just because they're on "our side"). :p
As I remarked in a private conversation, do you guys go all gaga over such principled stances when the woman looks like Helen Thomas?
/and I'm outta here!!! :)
It seems to me that a whole lot of people here are substituting custom and anecdotal "evidence" for the law, here: i.e., Miss so-and-so got away with it, so she should prevail on a question of whether or not she breached her contract (a question of fact) and whether or not the Miss California pageant has the right to fire her for so doing (a matter of law). This is a touchy feely approach to the law - surely a judge with empathy would rule in her favor :p
I think Justices Kennedy and Ginsberg would love it too, because it raises consensus above a faithful interpretation of the law. I find outcome-based legal reasoning difficult to reconcile with conservative principles.
Comment in haste... :p
I had another thought (yeah, I know - I conduct conversations w/myself all the time). I'm a woman - I like to talk.
Whether she breached her contract - I wasn't terribly precise here as to what was fact and/or law and probably shouldn't have been trying to type and think at the same time. I'm not sure I was correct there.
What I was thinking was that whether her actions amounted to breach of that '-no partial nudity' clause was the type of thing a jury generally decides.
Anyway, I should have waited until I had more time. I guess what I was wondering about was this:
... without knowing all of the details, there is the appearance of one set of rules for Carrie Prejean and one set of rules for everyone else. Is it a good idea to decide that having "weighed the risks of getting away with something" and deciding that the odds are on your side b/c others have gotten away with it a good standard?
Is making that a defense to a breach of contract action going to yield equitable results in most cases? Or do we want to insist that people assume that if they have promised to do a thing in return for money, they should (absent some pretty compelling defense) be held to their word, even if the result of that is that not everyone is treated exactly equally?
At the moment she signed that contract, she almost certainly was aware that some women had been fired for such actions, while others hadn't. So which "assumption" about whether she had to live up to her promises should conservatives apply?
No software. So the only way to do it is have each lady reprise her photoshoot, including the revealing clothing (or lack), and then use a tape measure ...
and measure very very slowly and very very carefully every square inch.
I'll volunteer to do the measuring, you do the paperwork.
So often, supporters of Carrie Prejeans, referring in this instance to people who think her views on gay marriage shouldn't be a basis for her public destruction, say something like, "but she only said what President Obama himself has said!"
Cynicism aside, the president was lying, he doesn't really believe what he said and everyone should just get over their gullibility.
I think there's a bigger issue here that is being overlooked: why are woman with augmented breasts allowed to participate in beauty pageants in the first place, and more importantly, why is the California beauty pageant organizers paying for them??
Er, how did Prejean "break her word"? That's a serious charge to be making on the basis of a disputed contract provision.
If I understand correctly (and I may not, I admit), the picture of the young woman posing in her underwear was taken by her modeling agency, held by them, and never published (until someone leaked it to the gossip sites).
I haven't read the contract either, but it's one thing to require that no nude or seminude or "photo of me in my undies with my back turned which most people would not call 'seminude' in the ordinary meaning of the term, i.e. no boobage is visible" - anyway, it's one thing to require no such pictures have been published - whether in magazines or one's Myspace page - and something else entirely to require that there be no such pictures, unpublished, in private hands, and with no reason to think they might be published.
I'm not even sure whether such a sweeping contractual provision would be enforceable against her. A provision that her boyfriend or husband does not have a picture she posed for once? That her parents don't have a picture of her running naked through the sprinklers at age 3? That she herself does not have any such photos?
To my knowledge, all of the controversies I've heard about where a beauty contestant had trouble over photos involved published photos, generally in a magazine. Not privately taken photos that were never available to the public.
No published photos is a reasonable contract provision. No photos at all - again leaving aside the question of whether the modeling photo is "nude" - doesn't strike me so, and without having seen it, I kind of doubt that the contract was written that way. Too broad and too easy to knock over if it ever went to litigation.
All this strikes me as minutiae anyway. The only reason this is even being discussed is that Prejean answered an improper question honestly, and that her honest answer was - although a majority view - considered beyond the pale by Our Betters. Therefore one of Our Betters who had access to the photo decided to send it out, so that others of Our Betters could embarrass her with it. This would not have become an issue and the pageant would not have cared a bit had not Our Betters decided to destroy her for heresy, part of their tactic being to trick those who share her views into dancing up and down with outrage at her. It's an ugly tactic and people of good will ought to refuse to play into it.
Er, how did Prejean "break her word"? Obviously you haven't bothered to read the contract.
A contract is supported by consideration - something of value given up by both sides - the right to take racy photos, for example.
This one was extremely specific about what she was, and wasn't to do if she willingly signed it. She had to separately initial each and every clause.
And she broke her word in at least three places:
1. Where she agreed not to accept any spokesperson positions without first clearing them with the pageant (NOM).
2. Where she agreed to conduct herself at all times with discretion and not place the pageant in the position where it would be involved in scandal, embarrassed, or embroiled in controversy. I'm paraphrasing, but the clause is quite specific.
3. When she rated as "true" the statement that she has NEVER been photographed nude, partially nude, or in a lewd or suggestive light.
they even gave her a place to describe any existing incidents/photos that the pageant might want to know about in advance.She left it blank. Now either these photos are not "private" and there is nothing to worry about (in which case why is she complaining about their release?) or she was, in fact, photographed both partially nude and in a suggestive manner.
You dont' get to move the goalposts to achieve the outcome you want :p The question isn't whether it's offensive. It's whether the photos fit the very specific definition in the contract.
They let her know up front what their conditions were. She chose to make false representations about past conduct as well as breaching the contract by appearing on the NOM web site - a clear violation of what she agreed to. Only someone determined to make excuses for her no matter what she does could ignore this.