FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech

Over at SCOTUSblog, Thomas Hopson makes the following observations:

Thomas Hopson

Thomas Hopson

“Srinivasan . . . wrote on the First Amendment case, Hodge v. Talkin. The case addressed a federal statute, banning certain forms of protest on the Supreme Court plaza. The court upheld the statute, arguing that the plaza was a nonpublic forum and that the ban protected a reasonable governmental interest. This interest was twofold: maintaining ‘the decorum and order befitting courthouses generally’ and promoting ‘the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure.’ Protests are still permitted on adjacent public sidewalks. The plaintiffs have filed for cert. in the Supreme Court.”

“In National Association of Manufacturers v. SEC, Srinivasan issued a strong dissent involving compelled speech under the First Amendment. At issue was an SEC rule requiring manufacturers to determine whether their products contain ‘conflict minerals,’ which would compel some manufacturers to label their products as ‘not conflict free.’ The panel majority struck down this rule, concluding that the label is ‘a metaphor [to] convey moral responsibility for the Congo war’ and that the First Amendment cannot compel companies to make political statements. Srinivasan dissented, writing that, ‘in the context of commercial speech, the compelled disclosure of truthful, factual information about a product to consumers draws favorable review.” Because “the First Amendment’s protection of commercial speech lies in the speech’s value to consumers,’ he concluded, ‘there is only a ‘minimal’ interest in resisting disclosure of product information to the public.’ The D.C. Circuit denied en banc review.”

See also FAN 73: “D.C. Circuit strikes down SEC ‘conflict minerals’ rule by 2-1 margin,” August 19, 2015

NB: The President will announce his nominee to the Supreme Court today at 11:00 am ET.

The Apple iPhone Controversy


Stay tuned: Starting on Friday April 1, 2016 I will launch a Special Weekly Edition of FAN devoted to the Apple iPhone controversy, this in conjunction with an April event to be hosted by the Newseum Institute.  


Court Hearing Date: 22 March 2016, before Judge Sheri Pym

  • Apple’s Reply to Government’s Opposition to Apple Inc.’s Motion to Vacate Order Compelling Apple Inc. to Assist Agent’s Search (March 15, 2016)
  • Government’s Reply in Support of Motion to Compel & Opposition to Apple Inc.’s Motion to Vacate Order (March 10, 2016)
  • Government’s Motion to Compel Apple, Inc. to Comply with This Court’s Feb. 16, 2016 Order Compelling Assistance in Search (Feb. 19, 2016)
  • Judge Sheri Pym’s Order Compelling Apple to Assist Agents in Search (Feb. 16, 2016)
  • Government’s Ex Parte Application for Order Compelling Apple (Feb. 16, 2016)
  • Amicus briefs filed on behalf of Apple
  • Tim Cook, “A Message to Our Customers” (Feb. 16, 2016)

News Stories 

Casey Newton, “Obama tells tech community to solve encryption problem now or pay later,” The Verge, March 11, 2016

  1. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  2. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,Wired, March 15, 2016
  3. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  4. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,San Jose Mercury News, March 15, 2016
  5. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  6. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  7. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016

Trumping the First Amendment 

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

No Trump,” Facebook

  1. Geoffrey Stone, “Donald Trump, Protest, and The First Amendment,” Huffington Post, March 16, 2016
  2. Rosalind Bentley, “Removing protesters from Trump rallies; 1st Amendment violation?,” Atlanta Journal Constitution, March 15, 2016
  3. Morgan Brinlee, “All The Ways Donald Trump Proved He Doesn’t Understand The First Amendment,” Bustle, March 15, 2016
  4. Phillip Bump, “Donald Trump is working his way through the 1st Amendment,” Washington Post, March 14, 2016
  5. Marc Randazza, “Defend Donald Trump’s right to free speech,” CNN, March 13, 2016
  6. Kiley Kroh, “No One Is Violating Donald Trump’s First Amendment Rights,” ThinkProgress, March 12, 2016
  7. Kathianne Boniello, “Trump rants protesters took away his First Amendment rights,” New York Post, March 12, 2016
  8. Rachel Stockman, “Trump is Now Huge Free Speech Advocate After Protesters Force Him to Cancel Rally,” Law Newz, March 11, 2016
  9. Charles Haynes, “Trump and future of First Amendment,” The Star Press, March 11, 2016

Campus Free-Speech Watch

William Voegeli, “Unsafe Spaces,” Claremont Review of Books, Winter 2016

Condor Friedersdorf, “The Glaring Evidence That Free Speech Is Threatened on Campus,” The Atlantic, March 4, 2016

  1. Kelly Moffitt, ” How far do First Amendment rights extend to colleges and universities?,” St. Louis Public Radio, March 15, 2016
  2. Laura Sydell, “At California Campuses, a Test for Free Speech, Privacy and Cybersecurity,” NPR, March 14, 2016
  3. Minnesota Faculty Panel Affirms On-Campus Free Speech,” Inside Higher Ed, March 14, 2016
  4. Dale Carpenter, “Top Minnesota faculty committee backs free speech resolution,” Volokh Conspiracy, March 11, 2016
  5.  Jamie Gorelick, Bruce M. Berman, Mark B. Rotenberg, Blake Roberts, & John T. Byrnes, “Congressional Hearing Examines Free Speech and Tax Constraints on Campus Political Activity,” WilmerHale, March 11, 2016
  6. Editorial, “Free speech needs campus ‘safe space,'” The Press Enterprise, Macrh 11, 2016
  7. Shaun Harper, “No, protesters who point out campus racism aren’t silencing anyone,” Washington Post, March 10, 2016

Upcoming: First Amendment Salon

Topic: “Hate Crimes, Cyberspace & The First Amendment” (Salon #8)

Moderator: Ilya Shapiro

DiscussantsDanielle Citron & Laura Handman

Date: 29 March 2016 (Wash., D.C. with videocast to NYC & Abrams Institute, Yale Law School)

Upcoming: Newseum’s Free Expression Awards 

Celebrating the World’s Champions for Free Expression” (April 19, 2016: 6:30 pm, reception & 7:30 pm dinner & awards)

The 2016 awards recognize those who exhibit passion for and dedication to free expression, including those who have taken personal or professional risks in sharing information with the public, are censored or punished by authorities or groups for their work, or show courage by pushing boundaries in artistic and media expression. The award categories are free speech, free press, religious freedom, and arts and entertainment.

Host: Scott Pelley


  • James Risen (Free Press Award)
  • Boniface Mwangi (Free Speech Award)
  • Abdallah Bin Bayyah (Religious Freedom Award)
  • Pussy Riot (Arts & Entertainment Award Honoree)

 Ticket Information (here)

Upcoming: First Amendment Moot Court Competition 

Seigenthaler Sutherland Cup National First Amendment Moot Court Competition

  • Date: March 18-19, 2016
  • Competitors’ Briefs (here)

The First Amendment to the U.S. Constitution — the cornerstone of American democracy — is the focus of the Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition.The Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition will be held March 18-19, 2016, at the Columbus School of Law, The Catholic University of America; and at the Newseum, in Washington, D.C.

The competition – in its debut year – will attract teams from leading law schools nationwide. During the two-day competition, each team will argue a hypothetical case based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

9780674659773-lgUpcoming:”Free Speech & Unfree News” Event

Host: National Archives (event info here)

Date: April 4, 2016

Venue: National Archives, Washington, D.C.

Live Streaming: (go here)

Description: Does America have a free press? Many who answer “yes” cite First Amendment protections that shield the press from government censorship. But in Free Speech and Unfree News, a comprehensive history of American press freedom, Sam Lebovic shows that, on its own, the right of free speech has been insufficient to guarantee a free press and compels us to reexamine assumptions about what freedom of the press means in a democratic society. A book signing follows the program.

Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America (Harvard University Press, 2016

Forthcoming Book

Forthcoming Article: Massaro tackles over breadth doctrine 

Toni Massaro, “Chilling Rights,” University of Colorado Law Review (2016 Forthcoming)

Prof. Toni Massaro

Professor Toni Massaro

Abstract: “A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to jurisdiction actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.”

“This Article tries anew. It describes the constitutional and normative puzzle presented by the conventional account of the overbreadth doctrine of the First Amendment, and synthesizes the leading works that address this puzzle. It then identifies emerging doctrinal trends that may prompt the Court to square its rhetoric with its doctrinal reality, and to align both with constitutional dictates. The Article offers the Court a straightforward path forward, under which the principles associated with facial challenges of all laws that chill fundamental rights are treated uniformly. Free speech overbreadth doctrine no longer would be a mysterious and esoteric jurisdictional outlier, but would illustrate the proper approach to analyzing all facial challenges. Moreover, this approach would govern in federal and state courts alike. This uniform approach would not trigger a cascade of facial challenges, but would provide a constitutionally sound and intellectually accessible tool for courts to uproot patently and egregiously overbroad laws that threaten to ice fundamental rights.”

New & Notable Blog Posts

  1. Eugene Volokh, “Share on FacebookShare on TwitterShare via EmailPolitician seeks restraining order against critic who called her ‘political prostitute’ and ‘honey,'” Volokh Conspiracy, March 15, 2016
  2. Eugene Volokh, “Divorcing lesbian mother ordered not to talk to children about religion or homosexuality,” Volokh Conspiracy, March 11, 2016
  3. Steven Schwinn, “Eighth Circuit Says No Standing to Challenge Ban on Disclosing Execution Team,” Constitutional Law Prof Blog, March 11, 2016
  4. Erica Goldberg, “Apple’s First Amendment Computer-Code Argument Dilutes the Brand (of both Apple and the First Amendment),” In a Crowed Theater, Feb. 26, 2016

News, Op-Eds, Etcetera 

  1. NY Anti-BDS Bills Threaten First Amendment Rights,” National Coalition Against Censorship, March 15, 2016
  2. Anders Gyllenhaal, “Will the First Amendment survive the information age?,” Poynter, March 15, 2016
  3. Brian Joondeph, “Does The First Amendment Only Apply To The Left?,” The Daily Caller, March 14, 2016
  4. Judge Jeanine, “No ‘Right’ to Shut Down Free Speech,” Fox News, March 3, 2016 (YouTube video)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  2. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  3. Town of Mocksville v. Hunter
  4. Miller v. Federal Election Commission
  5. Sun-Times Media, LLC v. Dahlstrom
  6. Rubin v. Padilla
  7. Hines v. Alldredge
  8. Yamada v. Snipes
  9. Center for Competitive Politics v. Harris
  10. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Electronic Arts, Inc. v. Davis

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 18, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

LAST SCHEDULED FAN #100: “FIRE Spreads — Group to Launch Online First Amendment Library

NEXT SCHEDULED FAN #102: Wednesday, March 23, 2016

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