Media groups urge high court to review publicity case

The Reporters Committee for Freedom of the Press and the Society for Professional Journalists have filed a friend-of-the-court brief on behalf of Hustler magazine asking the Supreme Court to clarify that right-of-publicity claims should not apply to newsworthy photographs.

The suit arose when Hustler appealed the decision of a U.S. Court of Appeals in Atlanta (11th Cir.) that said the magazine’s use of the image of a murdered professional wrestler violated her right-of-publicity interests — an individual’s right to control and profit from the commercial use of their own name or likeness that is protected by a series of state laws.

"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 read.

After Nancy Benoit was killed, along with her young son, by her husband, WWE wrestler Chris Benoit, in 2007, Hustler published an article, which was accompanied by nude photographs taken decades earlier. Benoit’s mother, Maureen Toffoloni, sued the magazine for violating her daughter’s right to prevent the commercial use of her image.

A district court in Georgia dismissed Toffoloni’s claim because Benoit’s death was a “legitimate matter of public interest and concern” and therefore protected by the First Amendment, but a three-judge appeals court panel disagreed, saying that the age of the photos did not make them sufficiently newsworthy.

The brief filed by the Reporters Committee argues that if the appeals court decision stands, it will create an unclear standard in right-to-publicity matters and possibly chill news reporting by allowing posthumous claims in all sorts of invasion of privacy claims.

"The court has created the prospect of an open-ended privacy tort liability for publications and newscasts regarding the deceased, who for more than a century have been consistently held not to have privacy rights," the brief said.