Letting it all Hang Out
The Houston Chronicle has been threatened in the past with hundreds of lawsuits over the paper's contents, but a recent missive to managing editor Tony Pederson from attorney Xavier Lemond may have been a first. On behalf of male model Robert "Bo" Valentine, Lemond alleged the paper invaded Valentine's privacy in a "negligent and malicious" manner by publishing a Foley's underwear advertisement displaying what appears to be the tip of Valentine's rather prodigious manhood dangling below his mid-thigh briefs.
The July 31 ad did not go unnoticed by Chronicle readers, and morning-drive DJs on at least four radio stations had a field day at Valentine's expense. Lemond claimed the unwanted exposure damaged the model's budding career. "Your conduct in publishing the likeness of my client in an inappropriate manner has libeled him, exposing him to public hatred, contempt, ridicule and financial injury," the lawyer wrote. "You have impeached his integrity, virtue and reputation. It appears you have published a natural defect of my client which also exposed him to public hatred, contempt, ridicule and financial injury."
After claiming his client has suffered severe emotional distress because of the ad, Lemond further turned up the heat. "Your actions have gone beyond all possible bounds of decency, and we regard your conduct as atrocious and utterly intolerable in a civilized community."
As is often the case, one good letter begets another, and soon bigwigs in the Chronicle's hierarchy were clattering away on their keyboards about Valentine's, uh, predicament. The Chronicle's vice president of administration, Robert Carlquist, wrote to the paper's libel lawyer, Bill Ogden, explaining that "the Chronicle received the ad camera-ready from Foley's. However, before we respond to Mr. Lemond and send him to Foley's, I will arrange a telephone conversation with you and our advertising people today. We seem to be experiencing a rash of nuisance legal matters this year. I hope we can slam the door on this one."
The paper's president, Gene McDavid, then got into the act with a letter to a relative that he also copied to a pal and attorney John Eikenburg. Hoping to illustrate "how far we've slipped into a legalistic morass," McDavid recounted the story of Bo's complaint and observed that the main result of the unexpected exposure was that "Foley's sold out on boxer shorts very quickly." McDavid went on to outline a strategy that appears to have been followed, with or without his knowledge: "My recommendation is that we circulate the demand letter and a copy of the ad to every attorney in town. The plaintiff's attorney would probably be laughed right out of town. (But I'm afraid no one agreed with my strategy.)"
From there, attorney Eikenburg picked up the ball and declared in a return letter to McDavid, "While I am personally and professionally embarrassed that a member of my profession would write such a stupid letter, I am also amused that Mr. Lemond has missed the real issues of this case." Eikenburg, it seems, determined that "far from 'public hatred, contempt, and ridicule,' the Chronicle has exposed Mr. Valentine's 'natural defect' to envy, covetous [sic] and jealousy. I am sure there are legions of Chronicle readers that would like to make 'Bo' their Valentine. Rather than a 'diminution in earning capacity,' I believe the Chronicle may have opened a whole new career for 'Bo' that will compensate him in ways he never dreamed possible."
But Eikenburg forecast big problems for Bo if he tries to take his complaint to court: "I will be most interested to learn how he develops a cause for action for invasion of privacy when a grown man takes off all his clothes, puts on a pair of boxer shorts and poses for a full-page photograph to be published in a newspaper with a jillion paid subscribers."
Lemond says his client hasn't decided whether to file suit, and he was coy when pressed to reveal whether the exposed appendage in the ad was the real Bo or just an ink spot. While some viewers might find the apparent size a reality stretch, Lemond allows that he's seen comparable equipment in some locker rooms.
-- Tim Fleck
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