How is stopping someone making a film about very famous public figure not a 1A violation?

[JRDelirious]

@GreysonCarlisle

True enough, but I thought that what we were arguing about is How is stopping someone making a film about very famous public figure not a 1A violation?

The OP makes a magnificent leap from biopics about Cobain and Joel to government oppression

Yeah, going back to the original OP questions, it sounds like it’s about whether there is a First Amendment violation ab initio in the existence of a situation in which the would-be creator of a movie feels restrained from making it because the persons who are the subject, or the holders of the rights to the material to be portrayed, refuse to cooperate, or make noises about how they may sue, thus making it harder for the would-be creator to get the project off the ground.

Well, the thing is, does “may sue” or “would not cooperate” actually impose prior restraint? You can still make the movie, just you have to make it without whatever added value that cooperation, or the availability of the music/images/writings beyond “fair use” limits, would lend to your work. Including such things as ease of financing or willingness of reputable directors/actors/distributors to be part of the project. But you can still make it, if you’re willing to deal with that.

And then those who have a beef with that will have to ask their lawyer if they’ve got any case to sue you over (ok, even if not, they may sue you anyway just to be dicks and force you to spend money). Then if it goes to court, and you did not do them wrong, the court can say to them, “sorry guys, he’s got a 1st Amendment right to do that.”

Most succintly put by a recent post:

@GreysonCarlisle

In short, everybody has rights, and it is the court’s job to weigh those rights against each other to arrive at an equitable solution.

Or to determine if there is a right involved that must take precedence over the other – as in Hamlet’s example with the case of The Hurt Locker .

[iamthewalrus_3]

@Little_Nemo

Being free to say something is not the same as being free to say something without facing any consequences afterwards.

If I say something and it harms another person, that person can sue me for the harm I caused them. That dispute will then be between that other person and me. The government is not acting against me even if our dispute is resolved in a court room.

No, you are wrong about this, as a matter of law, and @griffin1977 is correct.

Freedom of speech does not mean freedom from all consequences, but except for narrow cases in which the courts have decided that the 1st Amendment isn’t controlling, such as the actual malice standard, it means freedom from government imposed consequences, and the government enforcing a civil dispute counts as government imposed consequences.

But don’t take my word for it. Here’s The US Supreme Court, in NYTimes v Sullivan

@SCOTUS

(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is “state action” under the Fourteenth Amendment. P. 376 U. S. 265.

A civil suit over speech is not immune from 1st Amendment analysis. Now, that doesn’t mean that the freedom of speech is absolute, but it does protect you from both direct government interference and from government enforcement of a civil claim.

That is why the court could make a ruling in NYTimes v Sullivan in the first place.

[Little_Nemo]

@griffin1977

@Little_Nemo

Being free to say something is not the same as being free to say something without facing any consequences afterwards.

Unless the consequences in questions are direct sanctions from the government (either criminal or civil), in which case they are absolutely impinging on freedom of speech

Yes, I agree with that. When the government enacts a law forbidding you to say something, it’s a restriction on your first amendment rights.

[Moriarty]

@griffin1977

civil sanctions by the government are absolutely covered by the 1st amendment, just as criminal sanctions are, someone popped up to tell me that I’m using “absolutely” wrong, and they aren’t.

You are correct - and I was wrong - when you said that the 1st amendment would apply in civil cases.

But you seemed to be missing the fact that - while it is certainly true that the 1st amendment applies - it is often overridden by other interests. Privacy interests. Proprietary interests. Commercial interests.

The 1st just isn’t as expansive as you’re advocating.

[iamthewalrus_3]

@Little_Nemo

When the government enacts a law forbidding you to say something, it’s a restriction on your first amendment rights.

And also when the government enforces a civil suit from a third party brought under a law that they passed based on something you said.

[UltraVires]

A whole bunch of things are going on in this thread that I wouldn’t even know where to start.

1. The First Amendment has exceptions such as libel. The OP wasn’t talking about that.

2. The government is constrained by allowing civil actions which violates First Amendment rights or any other constitutional rights. See Shelley v. Kramer; Hustler v. Falwell. The problem with law X that we shall not mention was the creative way it was made in that there is nobody to sue to stop that law right now. Again, not what the OP is talking about.

The point of law referred to is the right of publicity: Publicity | Wex | US Law | LII / Legal Information Institute. That is not inconsistent with the First Amendment, but it only applies to commercial use of a person’s image or likeness.

And I was confused about this in another thread, but “commercial use” does NOT mean “do I make money from this.”

I can make a film about Donald Trump. I can use stock footage of Trump in the film. I can have clips of his words. I can make $100 million off of the film and not pay Trump a cent. I have to watch out for libel as mentioned above, but Trump or any other human is fair game for a film, and I can use satire like in the Hustler case. Although it was untrue that Falwell lost his virginity in an outhouse to his mother, the Supreme Court said, bah, that’s satire, not libel. Falwell didn’t really endorse Campari Liquor. Nobody really believes it. It’s art and entertainment. As a public figure, Trump would have to show “actual malice” if there are untruths. NY Times v. Sullivan.

What I cannot do is make “commercial use” of Trump’s image or likeness. I can’t put his picture on the sign to my law firm. I can’t play a radio ad with his voice dubbed to suggest that I am the best law firm in town. Only Donald J. Trump has the right to use his image and likeness for commercial purposes (Trump Casino, Trump University, Trump Winery, Trump Steaks, etc.).

The lawyer in the OP is trying to scare the film producer by equivocating on those words. What is being threatened is “don’t use Billy Joel’s image or likeness in a way which suggests that he endorses or promotes the film, or that it is from him.”

[doreen]

I just re-read the OP and scrolling down a little further got me to this

@griffin1977

Its not like they are not using his likeness or name because the are worried Billy Joel will be mad at them and they will get bad publicity. They are worried he’ll take them to court and the court system will use the threat of government force to take their money.

which kind of assumes that people making the film are not using his likeness or name. But I haven’t seen anything that actually says they are not using his name or likeness, although I have seen articles saying that they will not be using his music. “Unauthorized biographies” exist both as books and movies and they don’t change the subject’s name. Do you have a cite that they are making a movie without using his name or likeness - because not having the rights to the music is already going to make the movie bomb. If they aren’t using the name either, I have no idea who they think is going to see a movie about some unknown musician Irwin Mazur represented for a couple of years.