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Maybe it wasn’t a wise idea for Tony Sabin Prince to go dancing “naked from the waist up” with another man in a crowded nightspot. The next thing you know three photos of the Los Angeles man, who calls himself a working actor and a model, were featured prominently in a national gay magazine’s big story on illicit drug use and unsafe sex at gigantic dance galas known as “circuit parties.” Anyone who didn’t know Prince was gay now had some inkling and, worse for Prince, might get the impression he was a “drug whore” who engaged in wanton sex in public. Prince sued for defamation and invasion of privacy. On Jan. 3, though, in an unpublished ruling, Los Angeles’ Second District Court of Appeal ruled against Prince, saying that the gay monthly Out Magazine is protected by the First Amendment in its use of Prince’s photos in a May 1998 story titled “Dirty Dancing.” The court made that finding even though the photos were taken at a different event than the one described in the story and despite Prince’s claim that he had a reasonable expectation of privacy. “The uncontroverted evidence establishes that plaintiff was photographed at a party open to any member of the public who purchased a ticket, that the party was actually attended by at least 1,000 people and that the pictures depicted him on an elevated platform,” Justice Norman Epstein wrote. “This was a public event and plaintiff cannot establish he had the requisite ‘objectively reasonable expectation of seclusion or solitude in the place.’ “ Justices Charles Vogel and James Hastings concurred in Prince v. Out Publishing Inc., B140475, which likely delved further into the wild underworld of gay dance parties than the three Republican appointees ever wanted to venture. At times the ruling sounded like a racy novel as it quoted from the magazine’s story about fog-shrouded dance floors lit up by spinning lights above some 2,000 scantily clothed men. “Revelers wear white jeans, an occasional sailor cap and little else. Some wander upstairs past a sign reading ‘Cock Ring Express’ to play in a makeshift labyrinth of darkened rooms,” the ruling reprinted. “Downstairs, a pair of fully clothed young men openly sell Ecstasy at $30 a hit, divvying out small pills from what resembles an oversize Pez dispenser. Peter, a muscled 20-something flashing luminous blue eyes and a mischievous smile, dances over and quips, ‘This isn’t real life. This is circuit life.’ “ It’s that kind of description in the story by Jesse McKinley, juxtaposed with Prince’s pictures, that prompted the suit. The actor — who has served as the body for Fran Sinclair, one of the Muppet-like characters in the now-canceled series “Dinosaurs” — not only feared he had been outed to family and friends, but also that the article left the impression he was a drug and sex abuser. The court, however, said Prince failed the First Amendment’s “of and concerning” test. It’s true he’s gay, the court said, so he can’t claim libel for that, and he is unable to establish that the story’s references to unsafe sex and illegal drug use were “of and concerning” him. “The text refers to parties attended by thousands of people,” Epstein wrote. “There is nothing in the text of the article to suggest that the general statements about illegal drug use and unsafe sex apply to plaintiff.” The justices even rejected — in what could be construed an insulting fashion — Prince’s argument that his friends thought he might be the muscled, 20-something named Peter mentioned in the opening paragraphs of the story. “We have examined the photographs of plaintiff,” Epstein wrote. “He could not reasonably be described as a man in his mid-20s with blue eyes.” The court’s ruling upholds Los Angeles County Superior Court Judge Valerie Baker’s summary judgment for the defendants, as well as more than $75,000 in costs and fees in their favor. Henry Josefsberg, a Long Beach, Calif., sole practitioner who represented Prince, said he was disappointed, saying the appeal court ignored Judge Baker’s allegedly erroneous review of the evidence. “We worked very hard on this,” he said, “and I think we had a shot.” Walter Sadler, a partner at Los Angeles’ Leopold, Petrich & Smith who represented the publishing company, said the ruling didn’t establish new law. The court, he said, could have examined the cutting-edge issue of when someone might have an expectation of privacy, “but they chose not to do that.” Meanwhile, the ruling might serve as a warning to other closeted Hollywood types to keep their clothes on if they don’t want to be outed, especially when dancing with someone of the same sex in a sea of men doing drugs.

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