Amicus Curiae Brief — LFP Publishing Group, LLC v. Toffoloni

MOTION FILED

DEC 2 8 2009

No. 09-625

IN THE

Supreme Court of the Anited States

LFP PUBLISHING GROUP, LLC,

D/B/A HUSTLER MAGAZINE,

PETITIONER,

U.

MAUREEN TOFFOLONI, AS ADMINISTRATOR AND

PERSONAL REPRESENTATIVE OF THE ESTATE OF NANCY

E. BENOIT,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS AND THE SOCIETY FOR

PROFESSIONAL JOURNALISTS IN SUPPORT OF

PETITIONER

Lucy A. Dalglish

Counsel of Record

Gregg P. Leslie

The Reporters Committee for

Freedom of the Press

1101 Wilson Blvd., Suite 1100

Arlington, Va. 22209

(703) 807-2100

(Additional counsel for amici listed in Appendix A.)

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE IN SUPPORT OF PETITIONERS

Pursuant to Rule 37.2, The Reporters Commit-

tee for Freedom of the Press seeks leave to file a brief

amici curiae in support of the petition for certiorari.

Counsel for Petitioner has given consent. Counsel for

Respondent denied consent on the basis of insuffi-

cient notice, although Respondent has previously

been granted a thirty-day filing extension with Peti-

tioner’s consent.

The brief itself fully establishes that national

media advocacy organizations are uniquely posi-

tioned to bring the court’s attention to the nation-

wide First Amendment implications of the Eleventh

Circuit’s ruling in this case, and the chilling effect

the opinion has on press freedoms.

This case concerns an issue critical to the

press and the public in general: whether a court may

use the constitutional right of privacy of the Four-

teenth Amendment to defeat the First Amendment

rights of publishers in a right-of-publicity case. Amici

represent news reporters, editors, and publishers

that struggle with daily editorial decisions and face

the threat of potential liability. Amici respectfully

request that this Court grant leave for filing of the

brief.

Respectfully submitted,

Lucy A. Dalglish

Counsel of record

li

TABLE OF CONTENTS

es ssiuesslesenbunsedaaten

I. The Eleventh Circuit’s Overbroad Ar-

ticulation of the Contours of the Right

of Publicity Will Chill News Reporting

by Essentially Allowing Posthumous

Claims for All Invasion of Privacy

II. Because of these deeply rooted dis-

tinct analytical frameworks, the Elev-

enth Circuit erred in reasoning that

the interests underlying Georgia’s

common law right of publicity are

freely interchangeable with the Four-

teenth Amendment right to be free

from government intrusion into the

SE

III. The Eleventh Circuit Misinterpreted

The Meaning of Newsworthiness and

Made Unconstitutional Intrusions Into

the First Amendment rights of Publi-

cations to Have Full Control Over Edi-

ee cad sdieasensevercaanpanssns

Conclusion

iil

A. Even if the Court Found the

Photographs Infringed on the

Devisable Right of Publicity, the

Eleventh Circuit’s Articulation of the

“Newsworthiness” Violates the First

Amendment and Conflicts With

TLE TPR Fe NE OT

. This Court Has Explicitly Held That

Governmental or Judicial Intrusion

Into the Editorial Print Process is

Unconstitutional and Particularly

Repugnant to First Amendment

RISERS NLD es RE ROTO

. The Ninth Circuit’s Analysis in

Hoffman Illustrates the Proper

Standard for “Newsworthiness”

and Directly Contradicts the

Eleventh Circuit Opinion.....................66065

SOPOT HEHEHE HEE EEHEE EEE HEHEHE EHH ESE EEHEEEHEEHEEEHEEEREEEHE EEE

iV

TABLE OF AUTHORITIES

Baugh v. CBS Inc.,

828 F. Supp. 745 (N.D. Cal. 19993).......00..000000002.. 3

Bolger v. Youngs Drug Prods. Corp.,

ee acini ciiadsceudsteiniadebvectevecsdiesonss 14

Cabaniss v. Hipsley,

151 S.E.2d 496 (Ga. Ct. App. 1966).......... 6, 7, 10

Conradt v. NBC Universal, Inc.,

536 F. Supp. 2d 380 (S.D.N.Y. 2008).................. 8

Dora v. Frontline Video, Inc.,

15 Cal. App. 4th 536 (Cal Ct. App. 19993)........... 3

Dworkin v. Hustler Magazine, Inc.,

867 F.2d 1188 (9th Cir. 1989)...........0......... 14, 15

Eastwood v. Superior Court,

149 Cal. App. 3d 409

Se Gc PENS, HID Aivrcccsccésecnoscatensianeetees 3, 13, 14

F.C.C. v. League of Women Voters of California,

A A Mic cacs ic ccsccincagiacasatenecsiwnsmevesse 15

Florida Star v. B.J.F., 491 U.S. 524 (1989)............. 15

Gautier v. Pro-Football, Inc.,

Bie se Es Bs BD ovincesencestevecsovacscrencsesenes 11

Hoffman v. Capital Cities/ABC, Inc.,

255 F.3d 1180 (9th Cir. 2001)............... 14, 17,18

Griswold v. Connecticut,

COT MAT I 11

Gruschus v. Curtis Pub. Co.,

SES Fe FEO Chee CAR. 19GB) vc ncccrccccccovcccccsececeses 8

Harper & Rowe v. Nation Enterprises,

i Be RR RR e NP C 12

Lewis v. Time Inc.,

83 F.R.D. 466 (B.D. Cal. 1979) .......cccccosscoccceceee 15

Maritote v. Desilu Productions, Inc.,

345 F.2d 418 (7th Cir. 1965).....c.ccccccccsccscsesesseeees ™

Martin Luther King, Jr. Ctr. for Soc. Change, Inc. v.

Am. Heritage Prods., Inc.,

Be Wa ee TT CRSMR, BUD vesinscvcceccescccnceseesees 5, 10

Miami Herald Pub. Co. v. Tornillo,

Oe, aw stcvsacsccissesoecosennnsssncsncnaanes 16

Montana vu. San Jose Mercury News, Inc.,

34 Cal. App. 4th 790 (Cal. Ct. App. 1995).......... 3

Pavesich v. New England Life Ins. Co.,

Is ls IEEE ca cesscovtstcsceucceavsntsseneans 10, 13

Regan vu. Time Inc.,

I ys sinvensasenssonnsiesriexeresneenaiacosins 16

Santiesteban v. Goodyear Tire & Rubber Co.,

Fe © COED Cir. 1DGDE)..cccrcccccsvcccessevecseccsessnees 7

Stanley v. Georgia,

ee es i I oincntncnncioentantessucebbsneniinaiumuan 11

vl

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc.,

I. 5s ceuncssennnedurnecnectadneronorwabun 14

Virgil v. Time Inc.,

oy & Boe fT eae] 7). rene 9

Toffoloni v. LFP Publishing Group, LLC,

572 F.3d 1201 (11th Cir. 2009)............00000. passim

Young v. That Was The Week That Was,

423 F.2d 266 (6th Cir. 1970)............cccccccccsovccsvees 8

STATUTES AND REGULATIONS

U.S. Supreme Court Rulle 37 ............cccccccccccscccsscossceees 1

OTHER

Louis Brandeis and Samuel Warren,

The Right to Privacy,

4 Harv. L. Rev 193 (1890)................. sphetalaimnaaie 6

David Elder, Privacy Torts (2002).....................000066 14

William L. Prosser, Privacy,

BS CAL. Es, HOV. BOO CAO) csscvsccccvcssesscscvessiesess 6, 7

Restatement (Second) of Torts (1977)..............cccceseees 7

1

STATEMENT OF INTEREST!

The Reporters Committee for Freedom of the

Press is a voluntary, unincorporated association of

reporters and editors that works to defend the First

Amendment rights and freedom of information inter-

ests of the news media. The Reporters Committee

has provided representation, guidance and research

in First Amendment and Freedom of Information Act

litigation since 1970.

The Society of Professional Journalists is dedi-

cated to improving and protecting journalism. It is

the nation’s largest and most broad-based journalisr:

organization, dedicated to encouraging the free prac-

tice of journalism and stimulating high standards of

ethical behavior. Founded in 1909 as Sigma Delta

Chi, SPJ promotes the free flow of information vital

to a well-informed citizenry; works to inspire and

educate the next generation of journalists; and pro-

tects First Amendment guarantees of freedom of

speech and press.

' Pursuant to Sup. Ct. R. 37, counsel for the amici curiae de-

clare that they authored this brief in total with no assistance

from the parties and that no individuals or organizations other

than the amici made a monetary contribution to the prepara-

tion and submission of this brief. Counsel for petitioners con-

sent to the filing of this brief. Due to amici’s confusion over the

briefing schedule, amici gave counsel for Respondent only six

days notice prior to the filing of this brief. However, the Court,

with Petitioner's consent, previously granted Respondent a

thirty-day extension for a response, thus giving Respondent

more than thirty-six days notice of this brief before its brief is

due.

2

This case concerns an issue critical to the press

and the public in general: whether a court may use

the constitutional] right of privacy of the Fourteenth

Amendment to defeat the First Amendment rights of

publishers in a right-of-publicity case. Amici repre-

sent news reporters, editors, and publishers that

struggle with daily editorial decisions and face the

threat of potential liability. These journalists need

clear First Amendment standards in order to dis-

seminate the widest variety of information the public

is entitled to receive.

3

SUMMARY OF ARGUMENT

This Court should grant Petitioner’s petition for

certiorari to articulate the proper First Amendment

standard for newsworthiness with regard to misap-

propriation claims, and to reconcile the conflicting

opinions of various Courts of Appeal. These claims

uniquely impinge upon journalists’ and the public’s

constitutional rights because they are routinely

brought by plaintiffs who disapprove of certain edito-

rial content, and have included suits against news-

paper and magazine publishers,” television news out-

lets,3 and documentary filmmakers.‘

The Court should clarify that deference to the

First Amendment should be strictly maintained in

“right-of-publicity” claims against news gatherers

2 See, e.g., Eastwood v. Superior Court, 149 Cal. App. 3d

409, 415, 423 (Cal. Ct. App. 1983) (National Enquirer sued for

misappropriation by actor Clint Eastwood for featuring his

name and photograph on its cover and advertisements for an

article about him); Montana v. San Jose Mercury News, Inc., 34

Cal. App. 4th 790, 792-793, 794, 797 (Cal. Ct. App. 1995) (foot-

ball player unsuccessfully sued newspaper for reproducing

poster-sized pages of the paper to celebrate the San Francisco

49er's four recent NFL championships).

3 Baugh v. CBS. Inc., 828 F. Supp. 745 (N.D. Cal. 1993)

(Plaintiffs who were shown on a weekly news magazine, “Street

Stories” sued the network for airing footage of police response to

plaintiffs’ 911 call.)

4 See Dora vu. Frontline Video, Inc., 15 Cal. App. 4th 536,

540, 543, 546 (Cal. Ct. App. 1993) (Famous surfer sued docu-

mentary filmmaker for misappropriation and other claims, but

the court determined the film was on a matter of public inter-

est).

4

and publications. Taken out of the context of nude,

non-obscene photographs, the Eleventh Circuit opin-

ion’s limitations on newsworthiness make no sense,

as it goes well beyond photographs that appear in

magazines such as Petitioner’s to affect all news-

gathering.

The opinion, which allows the First Amendment

of the Constitution to be trumped by a common law

state tort claim, 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 pur-

pose.

The Eleventh Circuit opinion directly affects the

media and journalists who disseminate information

to the public. The court’s reversal of the proper dis-

missal of the claim in the lower court threatens to

chill all speech, particularly regarding the deceased.

The court has created the prospect of open-ended pri-

vacy tort liability for publications and newscasts re-

garding the deceased, who for more than a century

have been consistently held not to have privacy

rights. More generally, the Eleventh Circuit has pre-

sented an unclear standard that will inevitably lead

to confusion within the Circuit and among the other

federal circuits that must be resolved by this Court.

5

ARGUMENT

I. The Eleventh Circuit’s Overbroad Articu-

lation of the Contours of the Right of Pub-

licity Will Chill News Reporting by Essen-

tially Allowing Posthumous Claims for All

Invasion of Privacy Torts.

In perhaps aiming to offer some type of redress

to a plaintiff who suffered embarrassment, the Tof-

foloni opinion seems to have, possibly inadvertently,

confused the right of publicity with the very distinct

right to privacy. Regardless, this conflation of what

should be separate standards is highly problematic.

The Court should elucidate the fundamental consti-

tutional distinctions between torts prohibiting the

invasion of a right of privacy and the right-of-

publicity tort rooted in a devisable proprietary inter-

est. The Eleventh Circuit appears to have used the

right-of-publicity tort to redress very different pri-

vacy harms that were alleged because the late Ms.

Benoit was pictured nude against the wishes of her

mother, Ms. Toffoloni. The type of personal “injury”

that deals with embarrassment or public disclosure

is not the kind that may be remedied with a right-of-

publicity claim, as underlying jurisprudence demon-

strates.

Georgia, like many other states, has recognized

a state tort claim for violations of a person's “right of

publicity,” arising from “the appropriation of an-

other’s name and likeness ... without consent and for

the financial gain of the appropriator.” Martin Lu-

ther King, Jr. Ctr. For Soc. Change, Inc. v. Am. Heri-

tage Prods., Inc., 296 S.E.2d 697, 703 (Ga. 1982). In-

deed, Georgia courts have enforced the rights of pri-

vate citizens, as well as entertainers like Ms. Benoit,

6

not to have their names and photographs used for

the financial gain of the user without their consent,

where such use is not authorized as an exercise of

freedom of the press. Jd. at 703.

This tort has its original roots in the 1890 law

review article “The Right to Privacy,” in which Sam-

uel Warren and Louis Brandeis set forth the argu-

ment that let to recognition of privacy torts in

American jurisprudence. 4 Harv. L. Rev 193 (1890).

Notably, the authors were careful from the theory’s

earliest beginnings to articulate the right in a way

that would honor the First Amendment, stating that

this privacy right would “not prohibit any publication

of matter which is of public or general interest.” Jd.

at 214. This is the reasoning underlying the common

law “newsworthiness” exception to right-of-publicity

torts and privacy torts, which bars liability if a court

determines that information is of public interest.

From the Warren/Brandeis article came the de-

velopment of the common law privacy torts, most

commonly divided into four separate causes of action:

intrusion into a plaintiff's seclusion or private affairs;

public disclosure of embarrassing private facts; pub-

licity which places the plaintiff in a false light; and

appropriation, for the defendant’s advantage, of

plaintiffs name or likeness. See William L. Prosser,

Privacy, 48 Cal. L. Rev. 383, 398-407 (1960).

Particularly, the fourth misappropriation/right

of publicity cause of action has been continuously ar-

ticulated as being conceptually distinct from the

other three. The Georgia Court of Appeals specifi-

cally found them easily distinguishable in the Ca-

baniss case, which first described the state’s cause of

action for right of publicity. Cabaniss v. Hipsley, 151

7

S.E.2d 496 (Ga. Ct. App. 1966). The court’s opinion

cited Prosser’s assertion that “the interest protected

is not so much a mental as a proprietary one, in the

exclusive use of the plaintiffs name and likeness as

an aspect of his identity.” 48 Cal. L. Rev. at 406 (em-

phasis added). The court went on to say:

Recognizing, as we do, the fundamental

distinction between causes of action in-

volving injury to feelings, sensibilities or

reputation and those involving an appro-

priation of rights in the nature of prop-

erty rights for commercial exploitation, it

must necessarily follow that there is a

fundamental distinction between the two

classes of cases....

Cabaniss at 504.

This “fundamental distinction” is particularly

clear with regard to the ability of a cause of action to

accrue after a potential plaintiffs death. It is only

because ai. improper appropriation of the night to

publicity is analogous to the impairment of a prop-

erty right and is meant to avoid “unjust enrichment

of the defendants,” that the publicity rights may con-

tinue to exist after death. Restatement (Second) of

Torts § 652I (1977). As such, the theory underlying

the night of publicity is in sharp contrast to that of

the other invasion of privacy torts. The Restatement

Second of Torts states, with support from the Fifth,

5 Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th

Cir. 1962).

8

Sixth,6 Seventh,? and Tenth® Circuits, as well as

state appellate court decisions, “there is no action for

the invasion of the privacy of one already deceased,

in the absence of statute.” Jd. at cmt. b.

The Southern District of New York recently af-

firmed this reasoning, dismissing plaintiffs causes of

action for injury to reputation and invasion of the

right to privacy for lack of standing because there

was an invasion of the deceased’s privacy, and under

the applicable state law, a relative of the deceased

had no claim for that invasion. Conradt v. NBC Uni-

versal, Inc., 536 F. Supp. 2d 380 (S.D.N.Y. 2008).

Publishers have relied on the ability to be free

from “invasion of privacy” claims when discussing a

person’s death — which is very often newsworthy and

of public concern, as in the case of Ms. Benoit. Ar-

guably, the most in-depth and groundbreaking re-

porting on many subjects is disseminated when sto-

ries involve reporting on previously private aspects of

the lives of the deceased. Stories of crime, from the

mundane to the epic, such as Truman Capote’s In

Cold Blood, almost always delve into the past for in-

vestigatory purposes and to give context. The Elev-

enth Circuit ruling brings the ability to fully report

all news into question, as its holding had no lan-

6 Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir.

1970).

1 Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th Cir.

1965) (cert. denied).

8 Gruschus v. Curtis Pub. Co., 342 F.2d 775 (10th Cir. 1965).

9

guage linking its opinion to the specific features of

the case.

The Court should clarify this and reiterate the

fundamental distinctions between the torts that pro-

hibit the invasion of privacy and the right-of-

publicity tort based in a proprietary interest — the

only one that may be asserted on behalf of the dead.

Il. Because of these deeply rooted distinct

analytical frameworks, the Eleventh Cir-

cuit erred in reasoning that the interests

underlying Georgia’s common law right of

publicity are freely interchangeable with

the Fourteenth Amendment right to be

free from government intrusion into the

private sphere.

In articulating the contours of the right of pub-

licity under Georgia law, the Eleventh Circuit failed

to cite any opinion that interpreted the right to pub-

licity, specifically, and not one of the other privacy

torts — especially problematic because of the crucial

constitutional implications at bar.

In stating that the right of publicity must attach

to information that is “not open to public observa-

tion” and is appropriated for the commercial benefit

of another, the court cited Virgil v. Time Inc., a

Ninth Circuit case that addressed the tort of public

disclosure of embarrassing private facts about the

plaintiff — a tort which would not be available to the

relative of a deceased plaintiff. 527 F.2d 1122 (9th

Cir. 1975).

The Eleventh Circuit also noted the Supreme

Court of Georgia’s admonishment that defendants

10

not to be “guilty of an abuse of [the First Amend-

ment] privilege by invading the legal rights of others”

in the 1905 case of Pavesich, which was not particu-

larly relevant to an analysis of the facts surrounding

the article about Ms. Benoit, as the Pavesich case

dealt with a private citizen’s photograph in pure, un-

disputed commercial advertisement. See Pavesich uv.

New England Life Ins. Co., 50 S.E. 68, 81 (Ga. 1905).

Furthermore, the case dealt only abstractly with the

right of publicity because the tort had not yet been

recognized by law. See Martin Luther King, dr. Ctr.

For Soc. Change, Inc., 296 S.E.2d at 702. (explaining

Cabaniss’s subsequent recognition of the right-of-

publicity tort).

Most problematically of all, the Eleventh Cir-

cuit, without citing any legal authority, states:

Both the rights to freedom of speech and

freedom of the press, as guaranteed by

the First Amendment, and the right to

privacy, as guaranteed by the Due Proc-

ess Clause, are fundamental constitu-

tional rights. The Constitution directs no

hierarchy between them. Thus, courts are

required to engage in a fact-sensitive bal-

ancing, with an eye toward that which is

reasonable and that which resonates with

our community morals... .

Toffoloni v. LFP Publishing Group, LLC, 572 F.3d

1201, 1207-08 (11th Cir. 2009) (emphasis added).

The court got it wrong. This case did not involve

a plaintiffs “constitutional right” of privacy to be

11

balanced against the defendant’s First Amendment

rights,? rather it involved a plaintiffs right to file a

claim in order to redress an alleged tortious violation

of the deceased’s right to publicity. Therefore, the

proper balancing would be between one potential

state tort claim and the fundamental rights of the

First Amendment — a far different analysis than the

one undertaken by the Eleventh Circuit.

The analysis failed to note that Pavesich was

the Georgia Supreme Court’s first attempt at recog-

nizing a cause of action for invasion of privacy. It

surveyed the entire field of privacy interests, includ-

ing those interests in freedom from government in-

trusiori into the home. Protection from state interfer-

ence with privacy is, of course, the root of the due

process and Fourteenth Amendment privacy inter-

‘ests, and those coristitutional guarantees are not

relevant in the civil context. This fundamental right

has been defined as “the right to be free, except in

very limited circumstances, from unwanted govern-

mental intrusions into one’s privacy.” Stanley uv.

Georgia, 394 U.S. 557, 564 (1969); see also Griswold

v. Connecticut, 381 U.S. 479 (1965).

The court’s imprecise analysis here would inad-

vertently allow any family member to assert any pri-

vacy tort claim on behalf of a deceased relative be-

cause of their personal preferences about publica-

9 Even when such a right exists, “where . . . one is a public per-

sonage, an actual participant in a public event, or where some

newsworthy incident affecting him is taking place, the right of

privacy is not absolute, but limited.” Gautier v. Pro-Football,

Inc., 304 N.Y. 354 (N.Y. 1952).

12

tions’ editorial content under the guise of a violation

of the relative’s “right to publicity.”

The effects of this opinion are much more far

reaching than just applying to magazines that pub-

lish nudity. It would prevent media outlets from cov-

ering matters of public interest involving anyone liv-

ing or dead, even a public figure like Ms. Benoit, be-

cause it would prompt future courts to weigh equally

any individual’s privacy rights against a publica-

tion’s First Amendment rights. This is completely

contrary to what privacy jurisprudence has contem-

plated over its relatively short history.

Il. The Eleventh Circuit Misinterpreted The

Meaning of Newsworthiness and Made Un-

constitutional Intrusions Into the First

Amendment rights of Publications to Have

Full Control Over Editorial Content.

A. Even ifthe Court Found the Photo-

graphs Infringed on the Devisable

Right of Publicity, the Eleventh Cir-

cuit’s Articulation of the “Newswor-

thiness” Violates the First Amendment

and Conflicts With Other Circuits.

With regard to the newsworthiness exception to

right-of-publicity claims, the term “newsworthiness”

is something of a misnomer because as courts have

recognized, judges “should be chary of deciding what

is and what is not news.” Harper & Rowe v. Nation

Enterprises, 471 U.S. 539, 561 (1985). The exception

to the tort is for non-commercial editorial use. The

proper role of a court in making the newsworthiness

determination is not to judge the degree of value or

interest to the public but whether it is or is not a

13

purely commercial communication to the public, as

“the scope of the privilege extends to almost all re-

porting of recent events....” Eastwood, 198 Cal. Rptr.

at 349-50.

The Eleventh Circuit’s interpretation of the

newsworthiness standard poses a significant risk to

news organizations’ reporting and photojournalism.

The “newsworthiness” exception has traditionally

been given — and to comply with the First Amend-

ment, must be given — broad deference. The “news-

worthiness” inquiry undertaken by the other Circuits

has consistently turned on whether the speech is

purely commercial and this Court should grant re-

view to reconcile the standard with that of other Cir-

cuits.

Indeed, in the 1905 case relied on by the Eleven

Circuit opinion at issue, the Georgia Supreme Court

in Pavesich broadly articulated the theory of a

newsworthiness exception, and explicitly pointed out

the fundamental differences between commentary

and advertising:

“What we have ruled cannot be in any

sense construed as an abridgment of the

liberty of speech and of the press as guar-

antied [sic] in the Constitution

[Clertain it is that one who merely for ad-

vertising purposes, and from mercenary

motives, publishes the likeness of another

without his consent, cannot be said, in so

doing, to have exercised the right to pub-

lish his sentiments.”

50 S.E. at 80.

14

Of course, the newsworthiness-public interest

privilege is limited to uses which have a “reasonable

relationship” to a matter of public interest, and do

not represent a “mere disguised commercialization.”

David Elder, Privacy Torts § 6:9 (2002). But this

“reasonable relationship” standard has traditionally

been given very broad latitude. Courts have not ap-

proached the newsworthiness of a publication as an

element to be proved or disproved; but whether the

speech falls in a category that is strictly commercial

and whether the report is true. See, e.g., Dworkin v.

Hustler Magazine, Inc., 867 F.2d 1188, 1197-98 (9th

Cir. 1989); Eastwood, 149 Cal. App. 3d 409 (Cal. Ct.

App. 1983).

Although it can be difficult to define “commer-

cial speech,” this Court has written that the “core no-

tion” of commercial speech is that it “does no more

than propose a commercial transaction.” Bolger uv.

Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)

(emphasis added). Furthermore, that “[t}here are

commonsense differences between speech that does

no more than propose a commercial transaction and

other varieties,” Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 771 n.

24 (1976) (quotations and citation omitted).

Specifically, with regard to First Amendment

rights of organizations that sell “expressive” materi-

als, the Ninth Circuit has stated that “any commer-

cial aspects are inextricably entwined with expres-

sive elements, and so they cannot be separated out

from the fully protected whole.” Hoffman, 255 F.3d

1180, 1185 (9th Cir. 2001) (quotations omitted; dis-

cussed more fully infra at III.C.).

15

Tellingly, the Ninth Circuit has found that with

regard to the very same publication at issue in this

petition, the magazine’s inclusion of certain features

“solely or primarily to increase the circulation of its

magazine and therefore its profits” did not transform

it into a purely commercial or advertising use and

thus the material was privileged under the newswor-

thiness exception to the right of publicity. Dworkin at

1197-98. This is directly contrary to the Eleventh

Circuit ruling in this case.

B. This Court Has Explicitly Held That

Governmental or Judicial Intrusion

Into the Editorial Print Process is Un-

constitutional and Particularly Re-

pugnant to First Amendment Inter-

ests.

In F.C.C. v. League of Women Voters of Cali-

fornia, this Court wrote: “The expression of editorial

opinion on matters of public importance ... as we

have repeatedly explained ... is entitled to the most

exacting degree of First Amendment protection. 468

U.S. 364 (1984).1° And particularly with regard to

print media, which has always been the expressive

medium given the strongest First Amendment pro-

10 “The unrestricted distribution of newspapers and magazines .

.. is at the heart of the First Amendment.” Lewis v. Time Inc.,

83 F.R.D. 455, 465 (E.D.Cal.1979), aff'd 710 F.2d 549 (9th Cir.

1983); Cf. Florida Star v. B.J.F., 491 U.S. 524, 541 (1989) (“We

hold only that where a newspaper publishes truthful informa-

tion which it has lawfully obtained, punishment may lawfully

be imposed, if at all, only when narrowly tailored to a state in-

terest of the highest order.”).

16

tection,!! the Court found unconstitutional the “in-

trusion into the function of editors in choosing what

material goes into a [publication] and in deciding on

the size and content of the paper and the treatment

of public issues...” Miami Herald Pub. Co. v. Torn-

illo, 418 U.S. 241, 241-42 (1974).

This reasoning absolutely extends to the publi-

cation of visual art elements, as this Court in Reagan

v. Time Inc. held that government approval of a pho-

tograph is an impermissible content-based discrimi-

nation in violation of the First Amendment, specifi-

cally noting that “the Government simply has no

business second-guessing editorial judgments as to

the communicative value of illustrations....” Regan v.

Time Inc., 468 U.S. 641, 679 n.16 (1984).

The Eleventh Circuit’s overbroad holding has

eviscerated the media’s formerly robust First

Amendment protection from the right-of-publicity

tort. By engaging in a judicial dissection of the edito-

rial piece on Ms. Benoit to determine which portions

were sufficiently “newsworthy” (a misreading of the

proper standard), the Eleventh Circuit has infringed

the First Amendment rights of editorial decision

making of all news outlets that publish photographs

of any person. Because news outlets will now fear li-

ability for invading the “privacy” of anyone, living or

\t See, e.g., Turner Broadcasting System, Inc. v. F.C.C., 512 U.S.

622, 653 (distinguishing cable providers’ diminished First

Amendment rights from the more robust First Amendment

rights of print media) (“[T]he First Amendment protects the

editorial independence of the press.”).

17

dead, subject to an extremely vague “newsworthi-

ness” analysis, the Eleventh Circuit opinion violates

the First Amendment rights of journalists, editors,

and other creators of media. This functional govern-

ment intrusion into journalists’ editorial decision-

making in Toffoloni is unconstitutional.

Cc. The Ninth Circuit’s Analysis in Hoff-

man Illustrates the Proper Standard

for “Newsworthiness” and Directly

Contradicts the Eleventh Circuit

Opinion.

The Ninth Circuit in Hoffman addressed a pub-

lic figure’s claim for invasion of his right of publicity

and set forth a newsworthiness analysis that would

be both properly deferential to the First Amendment

and widely applicable. The court held that a maga-

zine article that featured a famous actor’s altered

photograph to showcase a designer gown was non-

commercial speech because the article did not have

the sole purpose of selling a particular product — the

clothing pictured. See 255 F.3d at 1185.

In contrast, the Eleventh Circuit’s analysis dis-

sected the elements of the magazine article and ac-

companying photos and analyzed them individually.

The court concluded that while the text of the article

was newsworthy, the photographs were not, and thus

this transformed the entire piece into a commercial

use of the photographs. In its analysis, the court ana-

lyzed text from the cover, text from the table of con-

tents, the article’s title, the length of text on each

page, and the ratio of photographs to text. See Tof-

foloni, 572 F.3d at 1209. Then the court made the

sweeping statement that the “heart” of the article

was not the biography of Ms. Benoit, but the photo-

18

graphs, and thus it was a commercial, non-

newsworthy use — an overbroad assessment that

has no corresponding legal authority. Id.

In Hoffman, the Ninth Circuit stated that just

because an article featuring a photograph of actor

Dustin Hoffman as his movie character “Tootsie,”

and had elements that vaguely proposed that the

reader purchase the outfit featured on the image of

Hoffman, this did not transform the photograph into

pure commercial speech. See 255 F.3d at 1185.

The court wrote that because the altered photo-

graph was not within an advertisement, and instead

advanced more than just a commercial message,

“common sense tells us this is not a simple adver-

tisement.” Jd. Furthermore, the court acknowledged

that although magazines use articles and photos to

“draw attention to the for-profit magazine in which it

appears, it does not mean that such articles “fall

outside of the protection of the First Amendment be-

cause it may help to sell copies.” Jd.

The Ninth Circuit’s opinion demonstrated the

proper breadth of the “newsworthiness” exception

with regard to editorial content, viewed as a whole,

in direct contrast with the Eleventh Circuit’s opinion

in Toffoloni, which threatens to subject any publica-

tion that contains illustrated articles to an overly in-

trusive analysis of every element of its product. The

Eleventh Circuit opinion calls into question every

news article that has a photograph of a person, fully-

clothed or not, into question as a potential violation

of that person’s right of publicity. Because a news-

worthiness analysis that does not rest on the distinc-

tion between the purely commercial and not purely

commercial does not give proper deference to the

19

First Amendment, the Court should not allow the

Eleventh Circuit’s arbitrary limitations on the

“newsworthiness” exception to remain in place.

CONCLUSION

The combination of the flawed reasoning for de-

nying defendant’s newsworthiness exception to the

Georgia right of publicity in this case and the Elev-

enth Circuit’s improper deference to the constitu-

tionally protected right of editorial selection results

in an unconstitutional chilling effect on all publica-

tions. If permitted to stand, this verdict threatens

news organizations in the Eleventh Circuit and

throughout the country and exposes them to the

threat of similar legally unsupportable liability.

Amicus therefore respectfully requests that this

Court grant Petitioner's petition for certiorari.

Lucy A. Dalglish

Counsel of Record

Gregg P. Leslie

The Reporters Committee for

Freedom of the Press

1101 Wilson Blvd., Suite 1100

Arlington, Va. 22209

(703) 807-2100

(Additional counsel for amici listed in Appendix A.)

APPENDIX A

Additional counsel for amici:

Bruce W. Sanford

Bruce D. Brown

Laurie A. Babinski

Baker & Hostetler LLP

1050 Connecticut Ave. NW, Suite 1100

Washington, DC 20036

Counsel for The Society of

Professional Journalists