Document Type
Article
Publication Title
Boston College Law Review
Abstract
Although they have differed in their approaches, courts deciding right of publicity cases have almost uniformly assumed that the appropriate way to test the constitutionality of the claim is to weigh the plaintiff's publicity interest against the defendant's free speech claim. The question left unanswered is what could possible give sufficient weight, in particular to a nonadvertising publicity claim, to allow it plausibly to outweigh the first amendment. The paper argues that no plausible jurisprudential predicate for this practice exists unless one is willing to accept the argument that interests expressed in economic terms are inherently weightier than traditional liberty interests. If this argument is unattractive, then the premise behind applying a balancing test for publicity claims is also flawed, leaving the tort The paper suggests that, at least outside the area of advertising uses, traditional first amendment analysis leave only the smallest of spaces for publicity rights.
First Page
1503
Volume
50
Publication Date
2009
Recommended Citation
Diane L. Zimmerman,
Money as a Thumb on the Constitutional Scale: Weighing Speech Against Publicity Rights,
50
Boston College Law Review
1503
(2009).
Available at:
https://gretchen.law.nyu.edu/fac-articles/1185
