Supreme Court declines to hear right-of-publicity case

From the Winter 2010 issue of The News Media & The Law, page 20.

After Nancy Benoit and her young son were killed by her WWE wrestler husband Chris Benoit, Hustler magazine purchased decades-old nude photographs of the model and female wrestler to illustrate an article about her death.

As the nation focused its attention on Chris Benoit’s alleged steroid use leading up to the double tragedy, Nancy Benoit’s family focused its attention on the photographs that ran with the Hustler story. Her mother, Maureen Toffoloni, sued the magazine for violating Nancy Benoit’s right to prevent the commercial use of her image for advertising purposes.

The publishing company that owns Hustler argued that the nude images of the model were used for a newsworthy purpose and appealed all the way to the Supreme Court, which on March 1 declined to hear the case and said Toffoloni’s lawsuit can go forward.

S. Derek Bauer, an attorney for the magazine at the district court and appellate court stages, called the appeals court’s decision a “remarkable and unprecedented” decision that “took an opportunity to judicially interpose some morality into the First Amendment.”

Toffoloni filed her suit against LFP Publishing Group in a Georgia state court, but it was removed to federal court by the magazine publisher. The U.S. District Court then dismissed the claim, finding that Benoit’s death was a “legitimate matter of public interest and concern.” Though the right of publicity protects the use of a person’s name or image for profit, newsworthy uses, even if they derive profit, are considered exempt from liability.

The court found that the article and photos were not purely commercial, but newsworthy and therefore protected by the First Amendment and Georgia law. (Some courts, including the U.S. Court of Appeals in San Francisco (9th Cir.) have said that almost any non-advertisement use in a news publication is considered newsworthy.)

But on appeal, a three-judge panel of the U.S. Court of Appeals in Atlanta (11th Cir.) disagreed, stating that Toffoloni could assert a right-of-publicity claim because the photographs were 20 years old and therefore not sufficiently “close in time” to the death to be newsworthy under the exception. The court wrote that it was required to balance Benoit’s rights with the publisher’s First Amendment rights, “with an eye toward that which is reasonable and that which resonates with our community morals.”

“This was admittedly a tasteless and insensitive editorial by Hustler magazine — a notorious rabble-rouser in an industry that has always been the ‘red-headed stepchild’ of First Amendment jurisprudence,” Bauer said. But if the court’s reasoning stands “judges can decide after the fact whether a particular image that illustrates a story is appropriate or not.”

The implications of the Eleventh Circuit’s decision could be far reaching. Common practices in entertainment journalism, such as covering deceased celebrities or running childhood photos of well-known figures like Michael Jackson and Farrah Fawcett, could lead to lawsuits, Bauer said.

“If you took the temporal limitations that the Eleventh Circuit adopted here and incorporated it into the First Amendment, there would arguably be a claim by the estates in those cases,” he said.

When Hustler’s publishing company urged the Supreme Court to hear the case, it argued that the First Amendment requires a broad interpretation of newsworthiness and that in the past courts have said it is inappropriate for them to decide to what degree an article is newsworthy.

In Hoffman v. Capital Cities, for example, the U.S Court of Appeals in San Francisco (9th Cir.) noted even if an article — in this case, a magazine’s use of a photograph depicting Dustin Hoffman as the movie character Tootsie — was created to “attract attention” and sell magazines, it did not make it a commercial use that excluded the publication from First Amendment protection.

Although “there was testimony that the Hollywood issue and the use of celebrities was intended in part to ‘rev up’ the magazine’s profile, that does not make the fashion article a purely ‘commercial’ form of expression,” the Hoffman court wrote.

The Reporters Committee for Freedom of the Press and the Society for Professional Journalists filed a friend-of-the-court brief in the Hustler case, which was accepted, that argued the circuit court’s opinion violated the First Amendment.

If the decision stands, the brief asserted, it will create an unclear standard in right-to-publicity matters that could chill news reporting if posthumous privacy claims, which are not usually permitted under U.S. law, are disguised as right-of-publicity claims.

“The opinion . . . is in conflict with other Courts of Appeal that have held that to comply with the First Amendment, the newsworthiness exception to the right-of-publicity tort must be broadly construed if the publication is not for a purely commercial purpose,” the friend-of-the-court brief said.