Re: Tiger Woods Suit

On Thu, Feb 25, 1999, Stanley M. Morris <smmorris[_at_]rmii.com> wrote:
>
> On 2/24/99, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > I think most courts would be inclined to view the limited edition work
> > exactly the same as mugs or t-shirts from a right of publicity point of
> > view. If it were a single original painting in a museum, they might
> > take the broader point of view that you advocate. I agree with you that
> > the First Amendment argument SHOULD be taken more seriously; I am just
> > skeptical that it WILL be.
>
> Given the Court's pronouncements in *44 Liquormart* and *Central Hudson*
> it should be no surprise that the more commercial a work becomes, aside
> from print media, the more the First Amendment gets short shrift. Based
> on some reading I did for a presentation several years ago, I discovered
> that the Court gives great respect to print and other traditional media.
> As the Court has moved through the years, (not just the present Court)
> the less a communicative means looks like the Founders' media the more
> likely they are to regulate and give the First Amendment less import.
> If my impression is true, any thoughts as to what this means for Web
> produced works?

I don't think it makes any difference to Web-produced works ... the medium ought not to matter.

A Web-produced political commentary is still likely to enjoy high First Amendment protection; a Web-produced ad is still going to get low-level protection.

There's no reason to think that First Amendment jurisprudence isn't going to continue referring to the content rather than the medium in deciding what level of protection should be afforded. Indeed, the rhetoric of the opinions striking down unconstitutionally vague portions of the CDA and COPA suggests precisely that.

Bob Cumbow
cumbr[_at_]perkinscoie.com
206-583-8566 Received on Fri Feb 26 1999 - 23:42:36 GMT