No, that’s the 14th Amendment.
So you are saying only laws past by the federal Congress, and of those, only ones that impose criminal penalties are covered by the constitution? That’s an errr interesting argument.
While the 14th amendment did incorporate the 1st to the states, it still doesn’t mean that there can never be enforcement of laws that restrict speech. A court isn’t prevented from, say, penalizing somebody for blasting orchestral music in a neighborhood at 3 am.
Nope. But you seem to be of the opinion that if you can claim that you are “expressing yourself”, you’ve raised a defense to any legal action to stop you. That’s simply not true. Even though the 1st amendment was incorporated to the states, it does not prevent somebody from suing another person for slander for the movie they made about them. Or for commercial appropriation. Or for invasion of privacy.
That’s correct, but it has nothing to do with which legal authority is doing the enforcing. The restrictions contained in the 1st Amendment apply to all levels of government equally. The exceptions that are carved out aren’t based on which agency is acting. There’s not a different interpretation of the 1st when you’re discussing laws passed by Congress than there is when you’re discussing policies set by a public school administration.
So these are indeed the laws I’m talking about. They seem to strike at the heart of the 1st amendment, as they take away your right to use the likeness of a public figure in a creative work.
Which cases? The only two I see are unrelated to any 1st Amendment issues (and neither was in favor of the law, one lost because of jurisdictional issues, one settled out of court).
Having now reviewed California’s law (section 3344), it is limited to using a person’s image for advertising.
Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.
That doesn’t offend me at all, and I’m a huge supporter of broad first amendment rights. You can’t put Obama’s photo on a Motel 6 advertisement with a caption like "the only place I stay when visiting Nebraska.
You are free, however, to make a movie about Obama without his permission.
The law doesn’t do that. From the wikipedia link Exapno provided:
“a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.”
Bolding mine. That’s an explicit carve out for creative or educational purposes. The point is to prevent ghouls from opening a Heath Ledger-branded corndog stand after the celebrity in question is too dead to sue them to stop. Nobody is being stopped by these laws from writing a Heath Ledge biography, making a movie about his life, including him as background character in a cartoon, or writing reams of steamy erotic fan fic featuring him, Tobey McGuire, and fifteen pounds of uncured Salamanca ham.
I have literally no idea what you mean by this. I certainly never said anything like this.
Except actually it does in most cases, even though slander is purely a civil matter between two private parties and not the state. A too wide interpretation of the slander laws was found to break the 1st amendment and so you can only sue based a very narrow definition of slander (you have to show malice in cases involving public figures). So again it is absolutely absolutely absolutely true that civil cases are covered by the 1st amendment.
There are hundreds, thousands, of exceptions to the First Amendment. At times it seems like courts have done nothing for the last 250 years except find ways to prove that the amendment is not absolute.
That’s not my count.
- In October 1990, actor Crispin Glover filed a lawsuit against Universal Studios for both the unauthorized use of his likeness and the use of footage of him from Back to the Future in Back to the Future Part II; his permission had not been sought for the latter and he received no payment. After a motion to dismiss was denied, the case was settled for an undisclosed amount. The Screen Actors Guild changed its rules to prohibit its members from unauthorized mimicking of other SAG members.
- In September 2002, Tom Cruise and Nicole Kidman sued luxury cosmetics company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.
- In March 2003, eight members of the cast of The Sopranos alleged that electronics retailer Best Buy used their images in newspaper ads without permission.
- In the July 2003 case of ETW Corp. v. Jireh Publishing ruled that a painting of the golfer Tiger Woods and others is protected by the US Constitution’s First Amendment and treads neither on the golfer’s trademarks nor publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit. In May 2005, Toney v. Oreal USA Inc. clarified the distinction between the purview of copyright versus the nature of publicity rights.
- The 2006 New York County Supreme Court case Nussenzweig v. DiCorcia, after dismissing the complaint on statute of limitations grounds, held in the alternative that personality rights are limited by First Amendment rights of artistic freedom of expression. The decision was affirmed on appeal by the Appellate Division and the Court of Appeals, but those courts only addressed the statute of limitations holding, not the First Amendment holding.
- In 2008, a federal judge in California ruled that Marilyn Monroe’s right of publicity were not protectable in California. The court reasoned that since Monroe was domiciled in New York at the time of her death, and New York does not protect a celebrity’s deceased right of publicity and that her right of publicity ended upon her death.
- In the 2009 case of James “Jim” Brown v. Electronic Arts, Inc., the District Court of the Central District of California dismissed athlete Jim Brown’s theory of false endorsement under the Lanham Act and determined that the First Amendment protects the unauthorized use of a trademark in an artistic work when the mark has artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found a lack of implied endorsement and held that the First Amendment protected Electronic Arts in its use of a virtual football player that resembled Mr. Brown.
- On April 29, 2020, the NCAA Board of Governors supported proposed rules for college athletes expected to take effect in 2021. The rules would allow athletes to be paid for use of their name, image and likeness (NIL) in endorsements and appearances.
Actually you did
OP, if a person believes a work you create about them wrongs them, what recourse do they have to obtain redress of that wrong? And how can they do that without involving the judicial authorities?
There are plenty of avenues of judiciary recourse that have been discussed by the courts over the centuries and found to have not been a violation of the 1st amendment. Why would I have a problem with that? The thing I had a problem with is several posters above saying that any case involving purely civil law between two private cannot be a 1st amendment issue. That’s patently bullshit
I actually think the US attitude to liable/slander is a really good one, where most attempts to get the courts enforce a liable judgement are deemed to be a violation of the 1st amendment and plantiff (if representing a public figure) must show malice not just incorrect facts.
The government isn’t taking your money. Another private citizen would be taking your money after winning a judgement in a civil court proceeding.
The First Amendment says you have freedom of speech. It does not grant you immunity from the consequences of what you say.
What happens if I lose a civil case, and refuse to pay? IANAL, but I’m guessing it involves the government forcibly taking money from me and giving it to the other party, and maybe throwing me in prison for a bit on top of that.
When Jerry Falwell tried to sue Larry Flynt for libel, what were the grounds for dismissing the suit?
Tell that to OJ Simpson.
He ended up going to prison for armed robbery - and not for refusing to pay the Goldmans. He’s got judgments against him to the tune of millions of dollars and not a lot of forcible seizure on the part of the government.
Presumably he at least has court orders telling him that he has to, or he will be subject to such seizure, which he’s in some process of either contesting or making partial payments on or something. The other private citizens certainly aren’t going to take his money without the state.
Whatever is the case with OJ in particular, the concept that’s being chewed on here is actually one of the most convoluted and important legal concepts that people fight over. Everybody agrees that the Constitution says what the government can’t do, and doesn’t say what other people can’t do. People don’t always agree whether a particular case is an example of the government doing something it can’t do.
But a civil court enforcing state law in favor of one person and against another person is definitely an example of the government doing something, whether or not doing it is a violation of the Constitution.
(Cite: "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.)
This is patently untrue. It says the government can’t penalize you for protected speech, that includes civil judgements just as much criminal ones.
Its not like this is hypothetical, the libel and slander laws are exact this (purely civil laws that involve damages being taken from one private individual and given to another) and they have been found to have profound 1st amendment implications over the course of several court cases (and are now strongly restricted such that, for public figures, simply showing the defendant knew the facts were untrue is not enough, showing malice is required)
Simpson was forced to auction off some of his possessions, including his Heisman trophy, with the proceeds going to the Goldmans to partly satisfy the judgment against him. It’s not unusual for the government to seize assets in a civil case. I would imagine that includes libel and privacy cases.
Simpson moved to Florida after the civil trial. Florida law prevents his pension or primary residence from being seized to satisfy the judgment.
Yes but point being there are limits to seizure. And whatever the case, they’re not going to toss him in prison over it. Maybe over the contempt shown in flaunting the decision but not for failure to pay itself.