Posted by Eugene Volokh: Judge Issues a Probably Unconstitutional Prior Restraint
in the [1]USA Next gay wedding photo case, at least if [2]this blog account is accurate. The judge issued a temporary restraining order against further airing of the ad, apparently on the theory that the ad infringes the same-sex spouses' right to control the use of their likenesses (the right of publicity or the right to block misappropriation of likeness). I argue below that the right of publicity doesn't cover the use of people's likenesses in political ads, and I remain quite confident of that. But even if the plaintiffs potentially have a good damages claim, an injunction of such political ads before a trial on the merits -- based not on a final judgment that the speech is unprotected but on a mere finding of likelihood of success -- is an unconstitutional prior restraint. Mark Lemley and I give more details [3]in this article. I should say that some lower courts have authorized such preliminary injunctions in the past, but I think they were quite mistaken as a matter of First Amendment law. I hope USANext promptly appeals; they have a very strong claim here, both under the First Amendment and under substantive right of publicity law, which is on their side. Thanks to David Kravitz and Jason Walta for pointers to the story about the injunction. References 1. http://volokh.com/archives/archive_2005_03_06-2005_03_12.shtml#1110553327 2. http://americablog.blogspot.com/2005/03/breaking-news-judge-grants-temporary.html 3. http://www1.law.ucla.edu/~volokh/copyinj.htm#VB _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
