The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

From Volume 79, Number 4 (May 2006)

America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.



Architectural Censorship and the FCC – Article by Christopher S. Yoo

From Volume 78, Number 3 (March 2005)

Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.



Media Structure, Ownership Policy, and the First Amendment – Commentary by C. Edwin Baker

From Volume 78, Number 3 (March 2005)

Ever since Mark Fowler’s 1982 article laid down the gauntlet to those who favor structural media regulation, legal academia has produced a host of free market acolytes advancing his views. These young academics increasingly dominate media law teaching and the FCC. Professor Christopher Yoo is one of this group’s best (as well as a personal friend). This short Comment on his article, Architectural Censorship and the FCC, is written not because I consider it uniquely objectionable, but rather because its fundamental errors and characteristic distortions are representative of this influential group of scholars. This Comment will start with observations about Yoo’s policy and economic analyses and then conclude with a critique of his desired constitutional regime.



Constitutionalism in the Streets – Article by Gary D. Rowe

From Volume 78, Number 2 (January 2005)

This Article embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study of United States v. Peters, the first Supreme Court decision to strike down a state law. In the last half century, the Supreme Court has repeatedly asserted that it is the “ultimate expositor of the constitutional text.” From Cooper v. Aaron to United States v. Morrison, the Court has invoked no less than the authority of Chief Justice John Marshall and his opinion in Marbury v. Madison to burnish its claim of judicial supremacy. Several legal scholars have recently come to question this assertion, arguing that judicial supremacy deviates from the path of the Founders and is of a more recent vintage. This Article both extends and questions the important project of these critics.

Both the Court and its scholarly critics rely heavily on what they take to be the Founders’ understanding of the proper role of the judiciary, and they have accordingly excavated the meaning of various Founding-era texts. This Article seeks to show, through a detailed analysis of the controversy that led to and followed the underexamined Peters decision, that such an analysis is incomplete because the role of the Court was unsettled and deeply contested in the early Republic. The Article uses archival, newspaper, and published sources in order to recount the remarkable travails of Gideon Olmsted, a sailor and American Revolutionary privateer, who spent over three decades attempting to collect money that a Continental Congress appellate court had awarded him in a suit against Pennsylvania in the late 1770s. Pennsylvania defied the court’s judgment, and Olmsted took his case to the new federal court system in 1803, and ultimately to Chief Justice Marshall’s Supreme Court in 1809, in what became the Peters case. Pennsylvania refused to comply with the Supreme Court’s enforcement order, and an armed clash between federal and state forces in the streets of Philadelphia ensued.

It is a mistake, the Article suggests, to treat Chief Justice Marshall’s nationalistic rhetoric in the Peters opinion as decisive (as the Court did in Cooper v. Aaron) without looking at the intense dispute and nuanced maneuvering outside the courtroom that surrounded Peters. Chief Justice Marshall was but one player among many in a tense standoff, and the Court was of but limited effect in settling a major, lingering controversy concerning the boundary between the federal and state governments—a controversy that dated to the days of the Continental Congress and that had once helped make the original case for a national constitution.

The surprising events that surrounded the Court’s decision in Peters should tell us something about the difficulty of resolving Founding era constitutional disputes, given the divergent understandings of the Court’s role that disputants invoked. Moreover, both sides of the controversy utilized a myriad of nonjudicial devices, including petitioning and appealing to other states, which were at least as important in the controversy’s ultimate resolution as the Court’s decision. The Article thus makes the case for the importance of studying actual constitutional practice instead of simply focusing on court decisions and official legal texts. By calling attention to the seemingly foreign ways that constitutionalism operated in the early American Republic, it urges scholars to treat the period as one of uncertainty, experimentation, and contingency, rather than attempting to mine it for precedents and traditions that support or contradict contemporary practices.



Catastrophic Threats and the Fourth Amendment – Article by The Honorable Ronald M. Gould and Simon Stern

From Volume 77, Number 4 (May 2004)

The traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks, and maybe even for an age of automatic weapons. In the past, ordinary crime, even heinous crime, almost always had a limited impact. But one must wonder whether our traditional constitutional doctrine, without more, is up to the task of governing all searches and seizures in an age of weapons of mass destruction and potential terrorism. This Article explores this question and concludes that traditional doctrine falls short in an age of threats unprecedented in their potential for harm. We propose that, because of the potential harms posed by catastrophic threats, courts should come to recognize that a fresh look at the probable-cause standard is necessary. We contend that, if properly conducted, largescale searches undertaken to prevent horrific potential harms may be constitutionally sound even when the search of each particular location does not satisfy the traditional probable-cause requirement that such search have a “fair probability” or a “substantial chance” of yielding the object sought. As we discuss at more length below, established Fourth Amendment doctrine requires “individualized suspicion” for each person or place to be searched. We argue, however, that even where that element is lacking, the government’s search for a weapon of mass destruction4 may be permissible if the Supreme Court’s “special needs” exception to the probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the search is justified by special needs that go beyond routine police functions; (2) the search program is reasonably designed to be as effective as is practical with the aim of preventing or minimizing harm to the public; (3) the procedure will give law enforcement constrained discretion in executing the search, and the search is not discriminatory in application; and (4) weighing the total circumstances, the balance between the governmental and societal need to search, weighed against the infringed-upon privacy of individuals, favors search.



Equality Without Tiers – Article by Suzanne B. Goldberg

From Volume 77, Number 3 (March 2004)

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court’s most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way for decades, will affect the future of equality analyses far beyond affirmative action.

Specifically, two interrelated developments have shaken the foundations of the Court’s three-tiered equal protection framework. First, as evidenced in Grutter and Gratz, the categorical application of rigorous review to suspect classifications has become its own battleground, complete with disputes over whether context should affect the strictness of strict scrutiny. Second, at the other end of the equal protection spectrum, the Court’s rational basis jurisprudence wavers between its typical deference to government decisionmaking and the occasional insistence on meaningful review, without a unifying theory for meshing the two seemingly distinct approaches.



The First Chink in the Armor? The Constitutionality of State Laws Burdening Judicial Candidates After Republican Party of Minnesota v. White – Note by Alexandrea Haskell Young

From Volume 77, Number 2 (January 2004)

Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.

The White decision has the potential to impact all thirty-nine states with elected judiciaries. Eight states besides Minnesota have or had the announce clause language as part of their judicial codes, and those states have either amended or most likely will need to amend their codes. The announce clause, however, is not the only statutory provision restricting judicial candidates. The majority opinion in White was clear in noting that its holding applies only to the announce clause, and the Court refused to grant certiorari to challenges of other state provisions affecting judicial speech. Nevertheless, the decision has sent the other thirty states with elected judiciaries scrambling to their codebooks to determine how this decision will affect their statutes and future judicial elections. One thing seems to be certain: Litigation is sure to follow. This Note will explore the potential fallout from the White decision by analyzing facial constitutional challenges to various state laws that limit the speech of candidates for judicial office.



The Takings Clause As a Comparative Right – Article by John E. Fee

From Volume 76, Number 5 (July 2003)

The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”

One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.

The comparative-right basis for the takings doctrine, however, is largely ignored in modern regulatory takings law. Our regulatory takings doctrine today functions more like a substantive due process right. Similar to due process cases prohibiting excessive punitive damages awards, the law of regulatory takings is commonly understood as a defense for individuals against government actions that are extreme and unreasonable as applied to the individual, rather than as a guarantee of equal treatment among members of a community. Whether regulation of one owner’s property has gone “too far” for regulatory takings purposes is determined independently of how the government regulates other owners.



Reading Zelman: The Triumph of Pluralism, and Its Effect on Liberty, Equality, and Choice – Article by Joseph P. Viteritti

From Volume 76, Number 5 (July 2003)

In June 2002, the United States Supreme Court approved an Ohio program that made available publicly supported vouchers for children in Cleveland to attend private (nonsectarian) and religious schools. Writing for a five-member majority in Zelman v. Simmons-Harris, Chief Justice William Rehnquist held that the Ohio program did not violate the Establishment Clause of the First Amendment because it (1) has a valid secular purpose of providing educational assistance to poor children; (2) is neutral with respect to religion and provides assistance to a broad class of citizens; and (3) provides aid to religious institutions only as a result of independent decisions made by the parents of the school children participating in the program. The Chief Justice further explained that the ruling was consistent with a line of judicial reasoning dating back to 1983, when the Supreme Court approved an education tax deduction adopted in Minnesota. In a concurring opinion, Justice Sandra Day O’Connor took a broader view of First Amendment jurisprudence, indicating that the majority ruling in Zelman was consistent with case law that allowed tax exemptions and other forms of government aid for religious institutions. Justice Clarence Thomas also concurred with the majority. Citing Brown v. Board of Education, Justice Thomas emphasized that the program in question was a well-intentioned attempt by the state “to provide greater educational opportunity for underprivileged minority students.” He further opined that incorporating the Establishment Clause to prohibit the kind of educational choice that the Ohio program provides would have the ironic effect of employing the Fourteenth Amendment to curtail liberty rights protected by the Free Exercise Clause of the First Amendment.



Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent – Article by Stephen Clark

From Volume 76, Number 3 (March 2003)

Was Justice Scalia’s vote in the Boy Scouts case judicially straight? For years he has championed the view that a general conduct law not specifically directed at First Amendment interests does not implicate the First Amendment even if it happens to restrict First Amendment activity in some of its applications. Thus, when Oregon evenhandedly enforced its drug-control law against religious and nonreligious uses of peyote, Scalia maintained that the First Amendment was not implicated, and when Indiana evenhandedly enforced its public indecency law against expressive and nonexpressive public nudity, he took the same position. But in the Boy Scouts case, when New Jersey evenhandedly enforced its civil rights law against expressive as well as nonexpressive discrimination, Scalia not only thought that the law implicated the First Amendment, but he also provided the fifth vote to invalidate it as applied.

When the Court handed down its decision in Boy Scouts, one could fairly have wondered whether Scalia’s dissent was missing. Since the civil rights law at issue could have been characterized as a general law not directed at First Amendment interests, Scalia’s decision to join the majority opinion invalidating the law’s enforcement on First Amendment grounds appeared to conflict with the First Amendment philosophy he developed in Employment Division v. Smith, Barnes v. Glen Theatre, Inc., and similar cases. In what may be called his Smith jurisprudence, Scalia has maintained that, so far as the regulation of conduct is concerned, heightened judicial scrutiny should be reserved for circumstances in which a law specifically targets First Amendment interests for disfavored treatment. Otherwise, accommodation of those interests should ordinarily be left to the political process. Scalia did not seem to adhere to that philosophy in Boy Scouts.