First Amendment v. Right of Publicity

Subject: History
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Freedom of expression in colonial America

Laws in America in the early sixties restricted freedom of expression for almost thirty years before the first newspaper was published (Pember, 1997). For instance, statutes in Massachusetts made it a crime to publish anything without first getting prior approval from the government. Twenty-Eight years before Benjamin Harris published the first and last edition of public occurrences the second and all subsequent issues of the paper were banned because Harris had failed to get permission to publish the first edition which contained material construed to be criticism of British policy in the colonies as well as a report that scandalized the Massachusetts clergy because it said the French king took immoral liberties with a married woman.

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Despite this inauspicious beginning, American publishers had a much easier time getting their views into a point and staying out of jail sails. Though there was a presence of censorship the American juries were reluctant to prosecute printers with alleged offenses of publishing without prior government consent (Alexander, 1963). As a result, the British attempted to use licensing taxes and sedition laws to control American printers and publishers (Chafee, 1941).

Subsequently, the licensing and taxes levied against the press, most of which were genuine attempts to raise revenue were nevertheless seen as censorship by American printers and as such resulted in growing hostility towards the parliament and crown, most publishers refused to buy the tax stamps.

John Peter Zenger’s Case (1734) was doubtedly the leading case that depicted government censorship and restrictions in expression. Zinger who published an article that in the New York Weekly Journal was jailed in November 1734 after his newspaper published several stinging attacks on Cosby, who surmised that by jailing the printer one of only two in New York – he could silence his critics. He was thus found guilty under the seduction law. The outcome of the trial however played a role in galvanizing public sentiments against the government censorship that was being practiced.

Thus several scholars expressed their various views as to what constituted freedom of expression in the 18th century.

As recorded in Leonard Levy’s book, Emergence of a free press, to those scholars whose prime concern was law and theory, a legacy of suppression of the press is what characterized freedom of expression. Roche echoes this assertion in his statement that in colonial America, the people simply did not understand that freedom of expression also meant freedom for the other person also particularly for the person with hated ideas. While to those who focused on views aired in newspaper judgments on public men and measures such acts revolutionized and expanded the legacy of liberty.

The emergence of freedom of expression

“No man should be imprisoned or fined for a publishing criticism… that is both truthful and fair” (Pember, 1997)

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The information of Zenger’s case (1734) brought with it various interpretations and understanding of freedom of expression. Amongst these was the above ruling that formed the cornerstone of the abolishment of government censorship and on the other hand rebirth of freedom of expression (Chafee 1941). The ruling became an accepted part of America Journalism mythology. It however was not without criticism while one school of thought argued vigorously for the right to publish what one wanted in the media as a God-given natural right another school of thought propounded for restriction of this freedom as to encapsulate limited and approved information (Braga, 2000). Later in 1781 the first constitution – Articles of Confederation was adopted but it is noteworthy that it did not contain any bills of rights let alone the clause establishing freedom to express thus the guarantee of the fundamental freedoms was left to the constitutions of various states. It was until later years that the bill of rights was incorporated in the government charter, which later became the constitution of centralized governance. It was drafted in such a way as to infringe on the bills of rights (Braga, 2000). It was until then that the first amendment came into existence.

The First Amendment and its implications

The ratification of the first amendment in 1790 saw the enactment of fundamental freedoms into the supreme law of the land. This enactment brought with it a different interpretation of press freedom. In light of the first amendment freedom of expression meant to most Americas the right to be freed from prior restraint or licensing (Chafee, 1941). Other scholars such as Blackstone defined this freedom as laying no previous restraint upon publication. On the other hand, it has also been established the introduction of the First Amendment not only meant free from prior restraint but also preclusion from prosecution for seductions libel (Braga, 2000). It is argued that the provision of the First Amendment with regard to expression was designed to protect the rights of the speaker (Chafee, 1941) and also allows individuals the fullest possible right to say and/or publish what they wished (Pember, 1997).

It is however noteworthy that there consist of no precise interpretation of the First Amendment provisions with regard to the liberty of expression. However, the jurists have promulgated legal theories that are used in identifying the interpretation of freedom of expression.

Interpretation Theories of the First Amendment

“Congress shall enact no law… prohibiting … abridging the freedom of speech or of the press or the right of the people to peaceably assemble and petition the government for a redress of grievances.”

Jurists have interpreted the foregoing provision in different ways to formulate views to the effect of interpreting this clause in a literal sense, mischief, or golden sense. The forgoing theories have emerged as a result of the diverse interpretations.

Absolute theory

The First Amendment declares that “no law” shall abridge the freedom of speech or press. This theory interprets the provision in a strictu sensu manner as to literally mean “No law” that speech and press are absolutely protected from any interference (Chafee, 1941). Critics of this theory however argue that the keywords in the First Amendment are freedom of speech and press as opposed to “no law”

Ad hoc balancing theory

This theory propounds that freedom of speech and press is two of a number of important human rights that in instances where the rights come into conflict it is the responsibility of courts to balance the freedom of expression with other values (Pember, 1997). As such the scales of this freedom are erected new in every case and the meaning of freedom of expression is determined solely on a case-by-case basis.

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Preferred position balancing theory

This theory propounds, unlike the ad hoc balance theory that freedom of expression is the foundation of the US system of government. Because it is so important, freedom of expression must be given a preferred status when balanced against other rights. Operationally this means that whenever balancing between freedom of expression and some other interests, freedom of expression takes the center stage. A court will presume that the limitation on freedom of speech or freedom of the press is illegal

MelkleJohman theory

Meiklejohn looked at the First Amendment in a pragmatic manner and argued that freedom of expression is worth little as an abstract concept; that its primary value is as a means to an end. Freedom of expression is protected in the constitution so that our system of democracy can function and that is the only reason why they are protected (Meilklejohn, 1948). He argues that expression that relates to the self-governing process must be protected absolutely under the First Amendment. He however retracts from this preposition and states that the courts against other rights and values must balance the value or worth of such speech. Critics of this preposition however state that there is no clear distinction as to whether expression pertains to self-governing or on a balance of other interests.

Access Theory

This theory was introduced in the 1960s by legal scholars who suggested that the first amendment should be interpreted to encapsulate the right of the people to gain access to the mass media to publish or present their own views and ideas (Blank, 1989). That the first amendment means more than the right of the rich publishers to print their own views. Blank states that for the First Amendment to have the right meaning, the media should be forced to open up their news columns to persons with ideas and views different from the well-off persons.

However, this theory was criticized in the case of Miami Herald.v. Tornillo, (418 US. 241. 1974), where Justice Warren stated that the choice of material to go into a newspaper, and the decisions made on the limitations of the size of the paper and the content and treatment of public issues are decisions that should be left to the editor. To second this provision, the decision in South Wind Hotel.v. Ladshutka, (9. M.L.R. 1661; 1983), established that the regulation of the content of broadcasting was justified on the theory that the airwaves belong to the people and that all persons really have a right to see and hear programs that reflect a diverse range of ideas. In addition, it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences that are crucial to development. The foregoing observations were upheld in various decisions and thus lead to the development and application of the fairness doctrine and other rules that forced broadcasters to carry certain kinds of programming (Nimmer, 1968).

The foregoing five theories or strategies form the guidelines that direct the interpretation of the first amendment which shall be used in defining the place of personality rights in relation to the first amendment provisions.

Personality rights in relation to the first amendment interpretation

The right of publicity evolved out of the right to privacy and as such is a subject of privacy rights (Sims, 1981). This right involves the right to bring forth charges for the commercial exploitation of name, likeness, or some other identifying aspect, which is limited by the first amendment. The law of privacy grew slowly and sporadically in the late eighties and to date in America, all but four states recognize some kind of legal right to privacy (Burchell, 1998). To date, Minnesota and South Dakota have thus far refused to recognize the torts that are constituted in private law (Pember and Dwight, 1974). Other countries in Asia have rejected one or more of the four torts that comprise the modern right to privacy (Lai Kwan, 2006). Today the law of privacy encompasses protection for at least four separate legal wrongs:

  • Appropriation of name or likeness for trade purposes,
  • Intrusion upon an individual’s site,
  • Publication of private information about an individual,
  • Any publication that puts an individual in a false light.

An examination of each of these constituents shall be looked into:

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  • Appropriation of name or likeness
  • It’s illegal to appropriate an individual’s name or likeness for trade or commercial purposes without consent. (Rubiner, 1992).

Appropriation constitutes one of the oldest of the four privacy torts. Appropriation protects an individual’s name or likeness from commercial exploitation. The plaintiff may, in an act of appropriation, claim that his or her image has been humiliated and embarrassed by having his/her photograph or name or image publicly associated with commercial endeavors. As such, it can therefore be argued that this tort protects an individual’s right to privacy. Wyatt, (1991) holds the view that the right of privacy and the right of publicity are identical but they differ in two important ways. He states that while the right to privacy only protects the exploitation of the individual’s name and likeness that of publicity, on the other hand, protects the foregoing identified elements together with the individual’s identity as well. In the case of McFarland.v. Miller14 F.3d 912 1994, McFarland sued the owner of a New Jersey restaurant called Spanky McFarland for infringement on his right to publicity. McFarland played the character called Spanky in “our gang” comedies in the 1920s, 1930s, and 1940s. Until his death in 1992, McFarland was receiving income from the licensing of products based on the series apart from the New Jersey restaurant. However, upon his demise, the court permitted the actor’s estate to maintain the lawsuit under the New Jersey survival statute. It was thus held that where an actor’s screen persona becomes so associated with him that it becomes inseparable from the actor’s own public image, the actor obtains an interest in the image which gives him standing to prevent mere interlopes from using it without authority.

It is imperative to note that in the United States the right of publicity as depicted in the above case is a property right rather than a tort and as such this right is regarded as being able to descend to the person’s heir after their death (Wyatt, 1991). Thus in state law such as the California Celebrities Rights Act extends the personality rights of a celebrity to 70 years after his demise thus the benefits that may result from the use of his or her name or likeness are escheat to the next of kin. This provision come to enactment pursuant to the ruling in Lugosi.V.Universal Pictures, (1979)25, C3d 813, where it was established that any right to publicity and right to image terminates upon a person’s demise. In California legislation, the Civil Code Sec.3344 provides for publicity rights of living persons while Sec.3344.1 as read with the Astaire Celebrity Image Protection Act constitutes provisions that grant statutory post-mortem rights which prohibit the use of name, voice, signature, photograph, or likeness of any person upon his demise. In the case of Show Family Archives Ltd.V.CMG Worldwide Inc., 486 F.Supp.2d.309 it was established that with regard to Marlin Monroe because she died before the Act was passed her name, voice, image, and any form of likeness was entitled to be published since the state of New York did not recognize the protection of the image of a public figure upon his demise.

In Europe in the leading case of Princess Diana in 1988 Diana’s estate sued Franklin Mint for selling products that bore her portrait. The lawsuit was filed on May 18th it was established that Franklin Mint failed to obtain consent to use her identity and trademark and thus took the advantage of benefiting from the profits of her image as a result of her death.

Intrusion upon an individual’s solute

Such devices as wiretapping, cameras with photo lenses, hidden microphones are all associated with intrusion to a person’s privacy. State and federal legislation regulate both what the government and private citizens can do in many instances, (Levin, 1980).

Today, laws in thirteen states prohibit the use of hidden microphones to record any form of conversation or action. Similarly, laws have been passed in 19 states outlawing eavesdropping; (Bloom 1991). The introduction of the Electronic Communication Privacy Act now regulates the privacy of electronic communication. This statute thus makes it illegal to use or disclose the contents of electronic communication if the user or discloser knew or had no reason to know that the information was obtained through illegal interception. In the foregoing tort, a legal wrong occurs when the private information of an individual is printed or published in the media (Pember, 1974). Wrong is also committed once the intrusion takes place through the gathering of information. In Henderson’s Case (1969) RPC 218, the plaintiffs who were ballroom dancers sued the defendants in passing off action that they alleged that the defendant wrongfully published their photograph on the cover of a particular magazine without their consent. An injunction was granted on grounds that the use of their names suggested their approval.

Publication of private information in a false light

The general rule provides that it is illegal to publicize private information about a person if the matter publicized would be highly offensive to a reasonable person and is not of legitimate public concern or interest. (Kalren, 1966). It is however worth noting that the courts in at least ten states have refused to or not yet recognized this tort. For example, the North Carolina, Supreme Court in refusing to recognize the tort actions called it “constitutionally suspect,” (Hall.v. Post 15 M.L.R. 2329, 1988). It was thus argued that the torts referred to as a constitutional suspect because it punishes the press for publishing truthful information that has been legally obtained and making the press liable in such instances seems to run against basic human rights provisions thus being contrary to the First Amendment tenets. However, it has been argued that the foregoing ruling is out of step as the public demand is that the press goes too far in prying into the lives of both those in public life and others who happen to become newsworthy momentarily because of a tragedy or some other event. (Kalren, 1966). The judiciary thus places great weight upon the role of the press as an agent to inform and enlighten the public on matters of interest and importance. However, in establishing the place of the media with regard to publicized information reference is made as to whether the publication of such material is offensive to a reasonable person. It is noteworthy that the feeling of hypersensitivity to a particular group of persons or individuals is immaterial. (Fry V Ionia Sentinel-Standard, 300 N.W. 2d 687, 1980) False light privacy protects the individual from damages caused by the publication of harmful falsehood information. Thus the establishment of three constituent elements is of the essence. First, the material should substantially be false as to cause the plaintiff humiliation and mental suffering. Secondly, a reasonable person must consider the information offensive in the phase of it. Thirdly it must have been displayed to the public scene.

The exception to the above rules

The right of the press to use individual names and likenesses for news and information purposes is a broad exception to the appropriation and intrusion doctrine. In this regard, the principle of incidental use permits a fleeting or brief use of an individual’s name or likeness in some kind of commercial creation. (Preston.V. MartinBregman Productions, Inc.765.Supp.166, 1991). The law also prohibits the unauthorized use of name or likeness for commercial or trade purposes without consent. States with privacy statutes require that written authorization or consent be given before use. Though oral consent can suffice it may be susceptible to withdrawal up to the moment of publication or broadcast (Durgom. V.C BS, 214, N.Y.S.2d.752, 196). It is however noteworthy that consent is subject to the limitation of time and that consent is given today may not be valid ten years especially f it is gratuitous oral consent. Certain persons may not also have the required capacity to consent.

The concept of passing off as redress to torts of personality rights

Passing off is a common law tort, which is used as an enforcement mechanism for unregistered trademarks. Passing off is applicable where another party misappropriates the reputation of an individual, such that the latter misrepresents the reputation of the former and thus damages the goodwill of the former (Leclari, 1996). It can thus be stated that the law of passing off prevents one person from misrepresenting his or her services or goods as being those of another and/or as having some association or connection with another party when this is not the case. The law of passing off thus enforces the prevention of misrepresentation in the cause of trade to the public that there constitutes some genuine link between the one selling out to the public and the person said to be an associate (Leclari, 1996). In this instance, the aggrieved party can initiate litigation proceedings against the person providing such publication or information with regard to stipulated damages under the law of passing off.

Elements of passing off

From the foregoing, it can be established that the key elements of passing off constitute reputation, misrepresentation, and damage to goodwill. This was clearly established by Lord Oliver in Reckitt &Colman Ltd.V.Borden Inc., 1990, 1RPC.3411where he stated that a person must establish goodwill or reputation attached to the good or service. Secondly, he or she must establish that the defendant misrepresented the services or goods to defraud the public that the goods or services so rendered are attached or linked to the aggrieved party. Lastly one must demonstrate that he suffers damage as a result of the erroneous beliefs created to the public. It is noteworthy that for misrepresentation to be actionable, it must be one calculated to cause damage to the plaintiff’s goodwill. The plaintiff need not prove actual or special damages as real and tangible profitability of damages suffices for a claim of damages.

Summary and Conclusion

The foregoing thesis has examined the concept of personality right in relation to the drafted provision of the first amendment. It has looked into the genesis of the first amendment and has identified that freedom of expression was under restriction during the colonial period. It has also been depicted that this restriction was pursuant to the approval of and the directions of the government. The paper has highlighted the as an example of the Massachusetts statutes that made it a crime to publish anything without prior approval. However, it is depicted that this restriction did not last for long as the public was opposed to this mechanism of press freedom. This was also depicted in the trial case of Peter Zenger where he was jailed for having published an article that exposed the illegal acts of a public official. It is upon this case that the rebirth of freedom of expression took place with the enactment of the First Amendment. The provisions of this enactment were however in ambiguous terms as to occasion different interpretations of what its actual intention was. It has been observed that while some of the people held the view that the amendment was intended to free persons from, prior restraint, others held the view that it was intended to restrain the government from affording persons punishment. It is, in this light that various theories that relate to the interpretation of the First Amendment took effect. This as depicted in the thesis constituted of the absolute, ad hoc balancing, preferred position balancing, Meiklejohn, and access theories. It is in light of this interpretation that various jurists interpret the personality right in relation to the first amendment provisions. Due to the fact that personality rights are a subset of the provisions of the First Amendment as they relate to expression, the cases that evolve as a result of a breach of this right are compared to the provisions that relate to freedom of expression as stipulated within this Amendment.

Therefore any breach of personality and or publicity rights is measured on the scales of whether the violation resulted in the appropriation of a persons image or likeness as to accession unjust enrichment to the person benefiting from another image, whether such misrepresentation leads to the public belief that certain good or service belonged or was associated to the said person, and finally whether the said person suffered humiliation and emotional distress. The paper has thus concluded by identifying the tort of passing off as a guiding doctrine for redress in instances of breach of personality rights.

It can thus be concluded that there constitutes no precise definition or criteria of determining what constitutes a breach of publicity rights and thus when these rights come into conflict with other rights, they should adopt the ad hoc balancing theory and alternatively the Meiklejohman theory in the interpretation of such rights in light of the First Amendment provisions in order to facilitate a justifiable coarse.


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