First Amendment

Charles R. Lawrence III, the writer of the essay that I am about to analyze, is a law teacher at Georgetown University, and also an author of so many articles in law journals. He has accordingly been active in his use of the First Amendment rights since high school. When he was confronted with the issue of racist speech, he felt that it needed to be diminished by society as a unit, because discrimination does not just affect one person, but it also affects society. As a law teacher, he’s got a lot of knowledge on First Amendment and law in general and he uses it well in his argumentation when he tries to explain the issue in university campuses today.

Some of the most important examples that he used were the Brown vs. Board of Education case and the ‘fighting words’ exception in the First Amendment. What I think was the most important topic that he talked about in his essay, On Racist Speech, were the disagreements between the First Amendment and the university officials who try to fight against discrimination of minority people in the society and how the rule of freedom of speech cannot apply in all cases for the whole society to be fully satisfied.

In fact, Charles tries to imply to his readers that First Amendment should be adjusted in order for it to make sense and not violate anybody’s right of free speech, as well as protect the speech no matter how assaultive it gets because otherwise it causes the minority group to suffer from adversity and harassing speech.

As we know, the First Amendment prevents the government from making new laws which would reduce anybody’s freedom of speech. As we also know, university officials create policies that punish people who encourage assaultive speech or behavior on a racial base. The writer said “If the purpose of the First Amendment is to foster the greatest amount of speech, racial insults disserve that purpose”, and later in the paragraph he added, “Racial insults are particularly undeserving of First Amendment protection because the perpetrator’s intention is not to discover the truth or initiate dialogue but to injure the victim.”

In these few lines, the writer tells us what he believes is the issue between the two sides based on what he has learned over the years of using the First Amendment. The two lines connect perfectly, because together they imply that even though some people might assault somebody else who belongs to a minority group in the society, you just cannot make a law that will shorten their freedom of speech. By making policies on university campuses against the perpetrators you reduce their freedom of free speech, which isn’t the right thing to do, according to the writer.

On the other side, it seems to us that the First Amendment has not been established very successfully because it kind of crosses paths with all the laws that are trying to eliminate the harassing speech and behavior. Charles argued, “The problem has been framed as one in which the liberty of free speech is in conflict with the elimination of racism. I believe this has placed the bigot on the moral high ground and fanned the rising flames of racism.” In other words, Charles is trying to tell us that the process of elimination of racism is hard to deal with because you have to respect each and everybody’s opinion and free speech. Therefore, he implies that the First Amendment seems to be working against the elimination of racist speech because maybe that is how the government wants it to be.

Last, but not least important issue with the First Amendment is that, according to Charles R. Lawrence III, is the ‘little’ exception that actually indicates a massive hole in the First Amendment, which said that speech done face-to-face to a random individual walking down the street was not protected by the First Amendment. Namely, the writer said “The Supreme Court has held that words which ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace’ are not protected by the First Amendment.”

The writer indicated that he was not happy at all about the exception in the law, and was trying to imply another inconsistency that he found in the law and persuading his readers to share his opinion by using emotional appeal. Namely, he said “Above all, I am troubled that we have not listened to the real victims, that we have shown so little understanding of their injury, and that we have abandoned those whose race, gender, or sexual preference continues to make them second-class citizens.” The writer, not only here but on few more places throughout the essay, emphasizes his emotions about the victims of harassing behavior in the past.

For example, “But I also have a deeply felt apprehension about the resurgence of racial violence and the corresponding rise in the incidence of verbal and symbolic assault and harassment to which blacks and other traditionally subjugated and excluded groups are subjected. I am troubled by the way the debate has been framed in the response to recent surge of racist incidents on college and university campuses and in response to some universities’ attempts to regulate harassing speech”. In the last few lines, the writer pretty much explicitly said what he felt like during times of violence, using the emotional appeals in order to try to increase the awareness of his readers about how the amount of racist speech is increasing each and every day.

In his essay On Racist Speech by Charles R. Lawrence III, the writer was describing the inconsistencies of the First Amendment, and what changes should be made in the First Amendment and the law about discrimination of minority people in university campuses. To do that, he used mainly real life examples and assumption to back up his arguments. He also used explicit points and implicit assumptions that he developed by both logically and emotionally observing the situation. His main points were, firstly, that by making different policies at universities about racist speech, college officials are violating the First Amendment because they are reducing their freedom of speech.

Secondly, the First Amendment has got to be adjusted because it seems like it’s working against the elimination of racist speech, which could be because the government wants them to do. Lastly, the writer indicated the inconsistency of face-to-face conflicts on the streets and what part of the law is it missing, while also using emotional appeals to persuade them to his point of view.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (U.S. Const. amend. I)

The first amendment is full of so-called “protections” that the government gives to the American people. This amendment, written in 1791 is not only way overdue for an update, but is actively working for the divide of the American population and deterioration of the nation as a whole. Freedom of religion causes a clear dissent in citizens, freedom of speech is used for hate, freedom of press is implemented immorally for our own fascination, freedom of assembly allows for people to come together to perpetuate hate and their minority opinion, freedom of redress gets citizens nowhere in terms of changing policy. All of these protections and freedoms are not only extremely outdated, but some are actually perpetuating hate and harmful behavior in the United States today.

Freedom of religion, originally established to act as a respite from the religious persecution going on in England, is damaging American population in the modern world. Religion, or lack thereof, should not be advertised in present-day society. Religion is more of an ideological circumstance, rather than one that should be announced outwardly. Everyone, in their own minds, may practice religion or the lack thereof, but broadcasting that belief is harmful.

People in the United States are getting angry at stances on religion other than their own, creating a divide in American culture that may lead to another civil war. Freedom of religion is dangerous because anyone can publicize their religious stance, perhaps sparking controversy and violence, those who practice openly certain religions are a candidate for persecution, and some religious practices and members are violent and are free to do what they want under the name of religious freedom.

In the United States today, there is a huge controversy around many religions — Islam, Satanism, Christianity, Paganism, etc. This is creating a great divide between the American people that may be irreconcilable. After 9/11, many Americans turned on those who practiced the Islam faith outwardly: wearing burqas, turbans, studying the quran. Many people who identify as Christian did not want those who identify as Islamic to be around them or in “their” country. Many people believe that religions like Satanism and Paganism are violent, evil, and are here to corrupt the youth’s thoughts. KKK members, under the guise of Christianity, are harmful to communities and to the safety of American citizens whose only offense was being born a different race.

Religion, practiced in the open, is not necessary; as an ideological condition, it can still be engaged in through ways not expressed in the open. By granting citizens freedom of religion, the United States is creating a breakdown in unity. If one can tell what another person’s religion is by simply looking at them, they can automatically produce a bias that would not otherwise be present. This can cause a problem with those who are less tolerant of other’s religions. Eradicating freedom of religion and making it illegal to publicly display one’s personal ideals,makes a more unified nation, disallowing bias to occur simply through one’s look. By allowing people to practice their religions in a manner that is public, the United States is not only perpetuating this hate and overall bigotry, but actively endorsing it.

Freedom of speech causes many problems in the United States today. People all around the country are allowed to talk about what they want, no matter the content, and label it under their innate protections in the constitution. Anyone, anywhere, can say anything they desire in the United States no matter of bigotry, racism, sexism, xenophobia, or any other moral qualifier.

Some say that freedom of speech is what makes the United States the greatest country in the world, but the adoption of the complete removal of this part of the constitution could possibly be the greatest thing to happen to the United States since our victory in the American Revolution. The amendment is outdated, used for the wrong purposes, perpetuates hate speech, and is all around contributing to the degradation of the United States.

Written in the late 1700s, this amendment is outdated and simply no longer applies to our world today. Freedom of speech was a constant struggle back when the United States was first “founded,” with British soldiers patrolling and limiting what others could say. However, today this is not the case; British soldiers are not around every corner in modern day America. Freedom of speech as once used for speaking out against oppressors, but now is only used to state unpopular, usually hate-filled opinions. Today, no one is walking around looking for people who say the wrong things to persecute. Instead, people use the cover of “freedom of speech” to say and do what they want, even if their words are ignorant, wrong, and completely illogical.

Freedom of the press was originally used so that American citizens could receive impertinent news about what was going on in their world. Today, however, this is used to stalk celebrities and bring the American public inane news about who is divorcing who and how so- and-so lost fifty pounds. Freedom of press has been reduced to a joke at this point.

Anyone with a camera can climb a tree and take intimate pictures of newsworthy people under the pretense of freedom of press. This is not only an invasion of privacy, but causes an almost cult-like obsession with people that have their days broadcasted 24/7. We currently live in a society where this behavior is normalized, however, it is arguably still immoral and contributing to an unequal balance of underserved wealth. Some people in the United States today have only gained economic status from being photographed constantly by the press. Remove this incentive and

make press illegal, wealth distribution in the United States would even out, by not granting those who make profit from such exposure permission to do so. By removing freedom of press, these issues would be eradicated: not allowing any kind of paparazzi-type hecklers to broadcast “news,” removing those who do not belong in the tabloids thus redefining their popularity, and the revenue and status gained from press would be redistributed throughout the nation in different, hopefully more productive ways.

Freedom of assembly is long overdue for a complete overhaul. Freedom of assembly was once used for our founding fathers to get together in order to plot to overthrow the fascist British empire. Today, this is not the case, as freedom of assembly is used as a transparent guise for those who want to congregate to plan detrimental acts of terror. Many people who collaborate and use the excuse of freedom of assembly are usually up to something dangerous.

The KKK uses freedom of assembly to get together and terrorize people of color. Hate groups use freedom of assembly to come together and use their freedom of speech to talk smack and often get active in their hate about whoever they choose to target. Assembly is not inherently evil, like freedom of speech, but in many cases this freedom is used in a nefarious way. By removing freedom of assembly, it would make it illegal to get groups together, making it harder for people with like minds for destruction to congregate.

Freedom of redress originally allowed citizens to address their local or national government with concerns about policy that they feel needs to be changed. Once, when the United States was still new and the population was small, government was closer to the people, and policies were reworked and amended frequently, redress was a viable option for citizens who wanted to change ordinances. In today’s world, it would be hard if not impossible to push a piece of legislation through even a town’s local government, much less on a larger scale such as congress.

In today’s world, the average layperson has little to no say in how the government is run. Even in elections it is not guaranteed that the person who wins the popular vote will win the presidency (as we see in Gore v. Bush). One of the only ways that anyone could present legislature to congress or government as a whole would be to actually be elected into the position itself. Redress is simply not attainable anymore and is no longer needed in the constitution.

The United States is filled with people of varying opinions that often clash with one another. By removing the first amendment — freedom of religion, speech, press, assembly, and redress — this limits American citizens in what they an say and do, thus abolishing conflict that is internally destroying the country. Citizens are at war with each other over their choice of religion, what they choose to say, how they conduct themselves. These freedoms, established in the constitution, once had valid and logical reasons for being enacted when they were. However, in the United States today, these freedoms are outdated and are causing more controversy than what they are worth. By abolishing these innate rights, American citizens will no longer be allowed to showcase their individuality or voice their concerns, creating an overall more positive and peace-filled country.

References

1. U.S. Const. amend. I.

The introduction of religious passion into politics is the end of honest politics, and the introduction of politics into religion is the prostitution of true religion. – Lord Hailsham

Religion was the basis of American colonization and has since played a major role in the development of the country. The relationship between church and state, specifically the separation of church and state, causes Americans to view religious bodies as separate from the government, but as a protected right in the Constitution. In order to preserve such separation, it is necessary for the government to uphold and to protect the rights of citizens through the designation of a secular neutrality and to prevent one’s personal religious beliefs from being limited or impacted by the government (Audi 1989 259).

This separation prompts one to ask the question: how should the separation of church and state be enforced today? This paper focuses on the separation of church and state mandated by the The United States Constitution. It will examine the history of the relationship between the church and state and how this relationship has become the breeding ground for many controversies. Then, this paper will examine the controversies that emerge from the enforcement of the church and state, such as the role of the church within schools, religious freedom, anti-discrimination laws, and the moral implications of religion and how that affects policy-makers decisions. I argue that the church and state should be entirely separated but also completely protected and respected.

The American view on the separation of church and state is largely derived from the First Amendment and the words of Thomas Jefferson in the early 1800s (Audi 1989 260). The First Amendment dictates, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (Dreisbach 2002 2). This amendment requires the protection of religion and the detachment between the American government and religious bodies.

Jefferson then proceeded to articulate this further in a letter to the Danbury Baptist Association where he refers to the First Amendment as the creation of a “wall of separation between Church & State” (Dreisbach 2002 2). That is why The United States is one of the few nations without a federal or state-imposed religion (Dreisbach 2002 2). Regardless of the supposed wall, America struggled to define what the separation truly meant through the next two hundred years, causing issues condemned by the church to be forced into the forefront of politics (eg. drunkenness, slavery, marriage etc.). Many of these issues were eventually ruled on in a more secular fashion. For example, same-sex marriage was legalized in 2012 regardless of the opposition of many religious bodies.

The Supreme Court articulates the modern perception of separation in the late twentieth century through the words of Justice Black, he wrote “a union of government and religion tends to destroy government and to degrade religion… Religion is too personal, too sacred, [and] too holy… Religion is also too powerful, too sinister, and too greedy to permit its unhindered pervasion of the civil magistrate” (Witte 2006 41). Many controversies lie in the inability of individuals to separate their own religious beliefs and the role of the state.

One major conflict regarding the church and state today is the role of religion in state-funded public schools. While the Supreme Court has largely shown that it is illegal to enforce public-school-sponsored prayer or religious indoctrination, it is still not uncommon to see religion in many public schools (ACLU 2018). One example of a religious presence in public school is the recent lawsuit regarding the Cole family in Louisiana.

Kaylee Cole’s school forced students to say the Lord’s Prayer every day in addition to the Pledge of Allegiance and frequently posted church-oriented propaganda around the Louisiana school (Simon 2018). The Cole family eventually sued the school and won (Simon 2018). For many areas of the United States, there’s no clear line where religion ends and the law begins because religion is so entwined with daily life (Simon 2018). However, the general consensus is that voluntary and private prayer is appropriate in public schools. Anything more forceful is unethical and in violation of the First Amendment (Anti-Defamation League 2018).

A topical issue regarding the separation of church and state is the distinction between religious freedom and discrimination. This is most explicitly shown by the Supreme Court Case Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018 (Masterpiece Cakeshop v. Colorado Civil Rights Commission 2018). This case examined whether or not business owners can deny services, based on their First Amendment right of free exercise of religion, even when these beliefs largely discriminate against marginalized groups (Masterpiece Cakeshop v. Colorado Civil Rights Commission 2018).

In this case, the owner refused to make a wedding cake for the marriage of a same-sex couple, on the basis of the his religious beliefs (Masterpiece Cakeshop v. Colorado Civil Rights Commission 2018). The outcome of this case was the Masterpiece Cake Shop winning against the Civil Rights Commission. While this court case will not be used to deliberate on the wider issue of religious freedom and discrimination, it does show that in some cases, the right to exercise one’s religion outweighs the right for every citizen to have access to some services. The controversy here lies in the fact that some believe that religious freedom is more important than anti-discrimination laws in some cases and others believe that neglecting anti-discrimination laws is far more harmful than infringing on religious freedom (McArdle 2018).

The last major controversy related to the separation of church and state is the inability for politicians to set aside their personal religious views when making policy decisions. For example, President George W. Bush once recognized that religion provides a strong moral compass and in that context is a complementary force to the government (Edwards 2009). Forty-three out of forty-five presidents have publically practiced Christianity and as such their moral values, and also decision-making abilities, have been dictated in some ways by the religion they celebrate (Edwards 2009).

It is incredibly difficult to separate one’s religious views from one’s political ideology and as such the church has had some impact on politics today. While some consider this to be unjust, there is no clear solution regarding how to resolve the issue, as religion can be a personal and intimate part of one’s moral code. However, this morality was responsible for many politicians opposing controversial and religiously-charged issues such as abortion and same-sex marriage. Without such religious beliefs influencing politicians, these issues could have been resolved earlier and with more clarity.

All things considered, how should separation of church and state be enforced today? Personally, I believe that religion is important. I was raised in the Catholic and Presbyterian church and as such many of my values stem from such religious bodies. However, I think that for the sake of American citizens, religion should neither be a part of political doctrine nor have an impact on policy. The right to practice any religion, like free speech or the right to fair representation in a court of law, is an undeniable right that needs to be protected. However, no religious body should be endorsed or funded by the American government, as it clouds policy and impacts minority religious groups.

I believe the separation of church and state needs to be enforced as strictly as possible to avoid discrimination. What’s difficult about this issue is that Supreme Court decisions, such as in the “cakeshop case”, do follow the Constitution, in that the court ruled in favor of religious freedom, so as not to impede the ability for one to express their religion. However, I believe this case leaves many marginalized groups vulnerable to discrimination and I feel that is unacceptable. Religion may be more important on a personal level, but the government is more important for the people as a whole.

Works Cited

1. Audi, Robert. “The Separation of Church and State and the Obligations of Citizenship.” Philosophy & Public Affairs, vol. 18, no. 3, 1989, pp. 259–296., doi:www.jstor.org/stable/2265345.
2. Dreisbach, Daniel L. Thomas Jefferson and the Wall of Separation between Church and State. New York University Press, 2003.
3. Edwards, Mickey. “Religion and Democracy.” The Atlantic, Atlantic Media Company, 3 Dec. 2009, www.theatlantic.com/politics/archive/2009/12/religion-and-democracy/31228/.
4. Feldman, Stephen M. Please Don’t Wish Me a Merry Christmas: a Critical History of the Separation of Church and State. New York University Press, 1997.
5. “History and Origins of Church-State Separation.” Americans United for Separation of Church and State, 2018, www.au.org/issues/history-and-origins-of-church-state-separation.
6. John Witte; Facts and Fictions About the History of Separation of Church and State, Journal of Church and State, Volume 48, Issue 1, 1 January 2006, Pages 15–45, https://doi.org/10.1093/jcs/48.1.15
7. “MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL. .” Supremecourt.gov, U.S. Government, 2018, www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf.
8. McArdle, Megan. “The Tension between Anti-Discrimination Laws and Freedom of Religion.” The Washington Post, WP Company, 6 June 2018, www.washingtonpost.com/blogs/post-partisan/wp/2018/06/06/the-tension-between-anti-discrimination-laws-and-freedom-of-religion/?utm_term=.fe5a2165c3bc.
9. “Prayer in Public Schools.” Anti-Defamation League, www.adl.org/education/resources/tools-and-strategies/religion-in-public-schools/prayer.
10. “Religion and Public Schools.” American Civil Liberties Union, Aclu, 2018, www.aclu.org/issues/religious-liberty/religion-and-public-schools.

Works Consulted

1. Flax, Bill. “The True Meaning of Separation of Church and State.” Forbes, Forbes Magazine, 14 Mar. 2012, www.forbes.com/sites/billflax/2011/07/09/the-true-meaning-of-separation-of-church-and-state/#7e5502b65d02.
2. Wells, Amy Stuart. Time to Choose: America at the Crossroads of School Choice Policy. Hill and Wang, 1993.
3. “RELIGION AND PUBLIC SCHOOLS: PROMOTING MUTUAL RESPECT AND UNDERSTANDING.” Https://Www.nea.org, National Education Foundation, 2018, www.bc.edu/content/dam/files/centers/boisi/pdf/bc_papers/BCP-ChurchState.pdf.
4. “Separation of Church and State .” Https://Www.bc.edu, THE BOISI CENTER PAPERS ON RELIGION IN THE UNITED STATES , 2018, www.bc.edu/content/dam/files/centers/boisi/pdf/bc_papers/BCP-ChurchState.pdf.

Every year, thousands of citizens tune in on Saturday mornings to watch the polarizing event that is college football. This spectacle, run by the infamous National Collegiate Athletic Association (“NCAA”), generates over a billion dollars every year. The universities are able to help generate this revenue due to the participation of the student-athletes playing the sport. Therefore, it is conclusory that student-athletes are a necessary component for universities and the NCAA to generate revenue. Recently, the industry of sports-media and athletes’ rights has been the focus of much litigation, specifically related to usage of college athletes’ names, images, and likeness (“NIL”).

Of these lawsuits, the most prominent have focused on major sports-media revenue sources, such as game broadcasts and videogames. The plaintiffs in these cases, often former student-athletes, have filed grievances against one specific party, the National Collegiate Athletic Association. The courts in these cases have been tasked with traversing the difficult line between an individual’s state-based right of publicity via the Copyright Act and the constitutional protection afforded to publishers and game creators under the First Amendment.

Although the issue has been addressed in federal and state courts, the Supreme Court has only addressed the situation (the right of publicity) once. In Zacchini v. Scripps-Howard Broad Co., the Supreme court held that the First and Fourteenth Amendments do not require a state to “privilege the press” when deciding whether the defendant was wrong to broadcast a plaintiff’s activity without compensating that individual. Without much more Supreme Court precedent, there is a lack of uniformity at the state level. As a result, many state and federal courts have developed different tests and standards that balance the state right against the constitutional right in order to determine if a plaintiff can successfully assert a right of publicity claim.

In determining the most recent publicity cases, the courts have often determined that a plaintiff cannot assert a right of publicity against the defendant’s use of that individual’s NIL in game broadcast footage, because “(1) the applicable state’s publicity statute expressly exempts sports broadcasts, (2) such broadcasts represent protectable non-commercial speech (i.e., qualify as newsworthy or public interest publications), and/or (3) the broadcaster’s valid copyright in the relevant game footage preempts a state-based publicity claim under the Copyright Act.” Although athletes often lose in those situations, courts have been more willing to hold a right of publicity belongs to athletes in the unauthorized use of an athlete’s NIL in a video game setting.

Section I of the article discusses the evolution of the right to publicity and how it has become intertwined with the First Amendment. In Section II, the article focuses the variety of tests employed by the courts in balancing the constitutional right against the state statutes. Section III applies the tests discussed in Section II in the sports-media context. Section IV turns to the current state of the sports media and rights of publicity as well as discusses suggested solutions moving forward.

The Birth of Publicity Rights

Judge Frank coined the phrase right to publicity in the 1953 holding Haelen Laboratories v. Topps Chewing Gum Inc.. The facts of the case state that a chewing gum company distributed gum and held the exclusive rights to use popular professional baseball players’ images for their products. Another gum company then convinced a baseball player to allow it to use that player’s image for its chewing gum as well. Judge Frank stated that “. . . a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture. . . This right might be called a right of publicity.” The language of the opinion suggests that Judge Frank believed the right of privacy afforded to public figures includes the right in the publicity value of his or her image.

Since the decision in 1953, the right of publicity has coincided with a right to privacy, with some courts declaring “[t]he right of publicity is, somewhat paradoxically, an outgrowth of the right of privacy.” Some scholars even go so far as to say that “appropriation . . . of the plaintiff’s name or likeness” can bring rise to a cause of action where the defendant “pirate[s] the plaintiff’s identity for some advantage of his own.”

Early opinions recognized the need to protect this property interest, especially for “publicly known persons” whose identities may be misappropriated. In the above-mentioned Topps Chewing Gum Inc. case, the court held that the players had an explicit right of publicity, stating that “…a man has a right in the publicity value of his photograph . . . This right might be called a ‘right of publicity.’” Therefore, with athletes being acknowledged as public figures, it follows that much of publicity litigation has revolved around the protection of athletes’ identities.

One of the most influential precedents in regards to the actions against the NCAA is the 1977 Zacchini decision. In Zacchini, the issue “involved the videotaping and subsequent rebroadcast on a television news program of [the] plaintiff’s human cannonball act.” The case started in the state courts of Ohio, where the Ohio Supreme Court determined that Zacchini’s right of publicity was trumped by the First Amendment.

The Supreme Court reversed this decision, dealing a blow to the powers granted by the First Amendment. The Court, in reversing, held that the “First Amendment did not insulate [the] defendant from the right of publicity in connection with the publication of the plaintiff’s entire act or performance.” The Court found that “[t]he broadcast of a film of [Zacchini’s] entire act poses a substantial threat to the economic value of that performance.”

The language used in Zacchini was relied upon in In re NCAA Student-Athlete Name & Likeness Licensing Litigation (“In re NCAA”). The court held that the First Amendment did not preclude athletes participating in the sporting events from asserting a right of publicity in connection with live broadcasts of them. Drawing from Zacchini, the court stated “[t]he Court’s reasoning in Zacchini strongly suggests that the First Amendment does not guarantee media organizations an unfettered right to broadcast entire sporting events without regard for the participating athletes’ right of publicity.”

Although In re NCAA was a victory for athletes, “subsequent federal court decisions have taken the opposite view characterized” in In re NCAA and cast the case out as an outlier. Even though it is unclear whether there is a uniform standard to apply, Judge Frank’s decision from 1953 created an environment where individuals became less concerned with their privacy and more concerned with their ability to protect names, likeness or images.

Publicity and the First Amendment

As mentioned above, when an individual’s, or an athlete’s, NIL is used without explicit approval, there is a possibility for that individual to bring a right of publicity claim. The defendant’s first line of defense is often employing the constitutional powers given by the First Amendment to argue they are not infringing on the individual’s right of publicity. Below, the article will detail the First Amendment and the forms of speech protected while addressing its limitations. Additionally, it will discuss the various defenses and exceptions that have been utilized to limit the scope of athlete’s right of publicity claim. Past precedent shows that the sports-media defendants have been quick to make use of such defenses when athletes raise right of publicity claims.

First Amendment Interaction

Alluded to throughout this paper is the fact that courts must balance the constitutionally given First Amendment rights of free expression against a state-based right of publicity for individuals when claims for right of publicity arise. The text of the First Amendment reads “Congress shall make no law . . . abridging the freedom of speech or press.” Since its inception, the First Amendment has faced many challenges which has led to the creation of three forms of speech that are protected by the amendment. These forms are: political news, expressive speech, and advertising.

Generally, the First Amendment gives the highest level of protection to political speech due to the impact it creates by providing “information about the real world and is essential to clear thinking and public debate in a free society.” Following political speech, expressive speech receives a lower standard of protection. Lastly, there is advertising speech, now referred to as commercial speech, which is entitled to protection under the First Amendment. In these circumstances, questions arise to determine whether the speech qualifies as commercial or noncommercial speech, which receives less protection.

Using this as a foundation, this article will focus on the First Amendment’s treatment of commercial speech, specifically whether the speech in question is commercial or noncommercial. The court in Jordan v. Jewel Food Stores, Inc. noted that while “[c]ommercial speech was initially viewed as being outside the ambit of the First Amendment altogether,” holdings preceding its opinion held “that commercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected noncommercial speech.”

The distinction between the two is important as it is found that noncommercial speech is often a complete defense to right of publicity claims. Contrasting with noncommercial speech, plaintiffs can find liability for right of publicity violations when attaching their argument to commercial speech. “To determine whether speech falls on the commercial or noncommercial side of the constitutional line, the [Supreme] Court has provided this basic definition: Commercial speech is ‘speech that proposes a commercial transaction.’”

The words of the Supreme Court do not deliver a bright line distinction between what is commercial versus noncommercial, therefore courts are left wondering in First Amendment cases where the distinction lies. Judging by past precedent, courts have been reluctant to create a specific test for these instances and instead rely on asking whether the defendant’s speech “proposes a commercial transaction.’ The court in Jordan v. Jewel is an example where a court used this approach in a sports-media related context. The facts presented in Jordan state that the defendant, a grocery store named Jewel, authored a one-page publication that was featured in a Sports Illustrated issue that celebrated Michael Jordan’s 2009 induction into the National Basketball Hall of Fame.

At issue was Jewel’s use of a design with Jordan’s number, the infamous twenty-three, accompanied by the slogan for the grocery store chain, “Good things are just around the corner,” without the consent of Jordan himself. Jordan’s complaint was founded in the Illinois statutory right of publicity. The argument presented by the defendant grocery store was that the advertisement in the magazine was noncommercial speech, therefore deserving protection under the First Amendment from any liability under the right of publicity.

At the trial level, the court sided with Jewel, but on appeal, the Seventh Circuit reversed the decision. The appellate court determined that Jewel’s ad was in fact “commercial speech” within the meaning of the First Amendment, stripping it of a complete defense against a right of publicity claim. In its holding, the court announced that “Jewel’s ad had an unmistakable commercial function: enhancing the [Jewel] brand in the minds of consumers.” Accordingly, in cases like Jordan, when an athlete’s identity is used in connection with some sort of commercial or brand advertisement, there is difficulty determining the overlap between First Amendment protection and liability under rights of publicity statutes.

News and Protection

In states that recognize a right of publicity, there is some form of newsworthiness exception that is empowered via statute or common law. Generally, the defense is “broad” and extends to “all matters of the kind customarily regarded as ‘news’ and all matters giving information to the public for purposes of . . . amusement.” Under New York’s right of publicity statute, “the use of a person’s name or picture in the context of an event within the ‘orbit of public interest and scrutiny,’ . . . a category into which most of the events involving a public figure . . . fall, can rarely form the basis for an actionable claim under [section 51 of New York Civil Rights Law].”

In sports-media, courts have held that “[t]he recitation and discussion of factual data concerning the athletic performance of [professional athlete] plaintiffs command a substantial public interest.” Additionally, courts have recognized that “both professional baseball and professional football . . . are closely followed by a large segment of the public.” With this in mind, some courts have determined that broadcasts of professional sporting events and related reports fall under the umbrella of newsworthy events, protecting them from liability under right of publicity statutes.

Jerry Falwell was a well-known Southern Baptist pastor from Lynchburg, Virginia, known for his teleministry (the use of television to share Christianity) and being a conservative activist. Hustler Magazine Inc., introduced in 1974, published by Larry Flynt, is an adult publication magazine. In 1983, one of the monthly issues of Hustler Magazine featured an “ad parody” advertisement for a liqueur brand using Falwell’s name and picture.

The advertisement read “Jerry Falwell talk about his first time”, with the use of “first time” being a play on words but meaning his first time trying the liqueur brand. This brand had done a series of celebrity interviews about each of their “first times” trying the liqueur before the Falwell ad was released. The alleged interview with Falwell that Hustler published stated his first time was during a drunken, incestuous relationship in an outhouse with his mother. At the bottom of the advertisement page, a disclaimer reading “ad parody- not to be taken seriously.” Falwell filed a suit against Hustler Magazine Inc. and Larry Flynt on three claims: libel/defamation, invasion of privacy and intentional infliction of emotional distress.

The court ruled against Falwell on the actions of invasion of privacy and also the claim of libel, ruling that a parody could not logically be believed as describing actual true facts or events. The court did rule in agreement with Falwell on the claim of emotional distress, expressing that he should be awarded $150,000 in compensatory and punitive damages. The U.S. Court of Appeals for the fourth circuit stated that the defendants are allowed the same first amendment protection rights on the claim of emotional distress as they were awarded on the defamation allegation.

Followed by saying, the “actual malice” rule stemming from the New York Times v. Sullivan case may not be appropriate in the situation of an emotional distress claim. The court ruled that the standard was met by the state law requirement and the jury ruled that the defendants had acted intentionally and recklessly towards the plaintiff. The Supreme Court granted a judicial review regarding the appeals court’s decision because it proposed a logical question dealing with the First Amendment restrictions on free speech in order to protect people from intentional infliction of emotional distress.

The decision in Hustler Magazine v. Falwell impacts future cases in respect to how the First Amendment protects the claim of intentional infliction of emotional distress regarding public and private figures. The court compared this case to New York Times v. Sullivan. Falwell made a claim about intentional infliction of emotional distress which was not covered in the New York Times v. Sullivan case. This posed a new question as to whether a public figure had to prove “actual malice” for emotional distress claims as they do for defamation claims. The Supreme Court reviewed whether the ruling for the emotional distress claim was upheld by the First and Fourteenth Amendments.

Validated by New York Times v. Sullivan, not every speech directed against a public figure is protected by the First Amendment. A public figure can be awarded damages for defamatory content that hurts their reputation, being that there was knowledge that the speech was false or was published with reckless disregard. Falwell argued a different standard to be used to judge his emotional distress claim because the severe emotional distress he suffered rather than the damage to his reputation. He argued that as long as all the required information of the claim were met, that it was not necessary to address whether or not the speech was fact or opinion.

The Supreme Court disagreed. The ruling by the Court of Appeals was reversed, the court stating that public officials cannot recover damages for the claim of intentional infliction of emotional distress, followed by saying “without showing in addition that the publication contains a false statement of fact which was made with “actual malice” …” (pg 6). Meaning that the ad parody directed towards Falwell was protected because the advertisement could not logically be conceived as stating factual information.

The decision from this case affects future decisions that involve publishers being sued for publishing defamatory content when the speech cannot reasonably be perceived as factual. This case decision upholds the protection of publishers’ First Amendment rights. This case also justified the verdict in New York Times v. Sullivan and upheld the “actual malice” requirement. While others also argue that public figures should be able to recover damages for the intentional infliction of emotional distress caused by the media, due to the fact of how the speech affects their emotional well-being.

A theory that could be applied in this situation is the marketplace of ideas, which claims the truth will surface from the competing ideas and the best will remain. In this case, the publication should be protected because the speech was considered to be so outrageous and far from the truth that it would not easily be believed. I agree with the court’s decision to reverse the verdict of the Court of Appeals due to the fact that other media outlets and publishers would fear whether to release content in the future and being faced with consequences. The media is a vital news outlet for citizens, and if the media were holding back information because of concern, the people would be neglected from receiving important information.

Sources:

1. Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988), Supreme Court of the United States.
2. “Hustler Magazine, Inc. v. Falwell.” Global Freedom of Expression, 27 June 2008, globalfreedomofexpression.columbia.edu/cases/hustler-magazine-inc-v-falwell/.
3. “Jerry Falwell.” Biography.com, A&E Networks Television, 16 Apr. 2019, www.biography.com/personality/jerry-falwell.

Every day in America we speak our opinions, worship whomever we choose, and write our sentiments out. What if we never had those rights? What if we got punished just by expressing our opinions or even by simply wearing a necklace with a cross on it?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” -U.S. Congress The First Amendment to the U.S. Constitution is our most important right, because of the way it has shaped society.

To begin with, the First Amendment laid the foundation for the free, prosperous society that the United States is today. This Amendment ensures that as individuals in a Democratic society we have the freedom to voice our opinions, criticisms, objections and passions freely from government interference. Because of the First Amendment, we can post political signs in our yards, display bumper stickers and vanity plates on our cars, as well as speak out at city council meetings.

As George Washington once said, “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter. This quote explains that people should be free to speak against the government. Even back in his time they knew; throughout history, the only way that freedom of speech can ever be taken away, is at the point of a gun. The only entity that can take your freedom of speech away is the government.

In addition, this Amendment is fundamental to the existence of democracy and the respect of human dignity, as it protects five basic freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government.

These civil liberties are also the cornerstone of our democracy. They ensure that each of us can develop our own beliefs, express ourselves freely, meet openly with others, and have our views on public matters heard by those who govern. For instance, the Tinker v. Des Moines Independent Community School District, 1969 Case. In this case three public students wore black armbands to school to protest the Vietnam War. They were suspended from school for refusing to remove them, and the students John Tinker, Christopher Eckhardt, and Mary Beth Tinker sued the district for violating their 1st Amendment rights.

The Supreme Court’s decision was that the school did violate the students’ rights. Non-disruptive, passive, symbolic speech cannot be censored just because it makes others uncomfortable. In this case the court also established the “Tinker Test”, the standard that public schools must meet before legally restricting free speech or expression of students. This case has great affected students and teachers in society. It was also significant because the justices stated, “students do not abandon their civil rights at the school house door….” The school is not allowed to limit a student or teachers first amendment rights.

Student and teachers are now able to freely express their first amendment rights as long as it does not cause a disturbance to the classroom or school. If students were shouting and protesting in classrooms, the school would be able to step in because it causes other students to be distracted from their schoolwork. This case acted as a stepping stone for students and teachers to maintain their first amendment rights in the Bill of Rights that are given to every citizen. This case spread awareness of school boards limiting students’ rights and hopefully affected how administrators and school boards handle different protests and situations.

To be continued, after my thorough research about countries without the rights of the first amendment, I learned that millions of people around the world don’t have the rights we have.

It’s so disappointing to think that somewhere a teenager my age is confined in a cage. They don’t have the right to express their ideas that may change the world. Instead, they will grow in an environment where the government is superior. This is an isolated place where no one has barely any freedom to do anything. Their words are in the back of their heads, never allowed to express the words they speak. It’s a place where no one will be able to hear a single breath of words or thoughts. The wind just captures their words and sends it away into space, where no one will be able to hear anything.

In brief, the First Amendment is fundamental to the existence of democracy, laid the foundation for the free, and protects the five basic freedoms. Without this Amendment how would we make it in this world? We would not have the freedom to voice our opinions, criticisms, objections and passions freely from government interference. How about posting political signs in our yards, display bumper stickers and vanity plates on our cars, as well as speak out at city council meetings? Would we be able to do that without the First Amendment? Think about these questions and how other countries don’t have the opportunity to speak.

The First Amendment to the Constitution of the United States of America speaks of certain guaranteed freedoms of the citizens. Said freedoms, are of paramount importance, and having been guaranteed by the supreme law of the land, it means that intrusions into said rights can not be countenanced. The First Amendment states that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It appears that the First Amendment speaks mainly of three fundamental rights of the citizens namely, the right to freely exercise one’s religion; freedom of speech and of the press; and the right to peaceably assemble. By virtue of the Constitution, intrusions respecting said rights cannot be allowed. It bears to stress that the First Amendment serves as a reminder that the branches of the government, in exercising their powers, must not step or intrude into said guaranteed rights. However, it must be borne in mind that the freedom granted to the citizens under the First Amendment is not absolute in character.

There are certain limitations to the exercise of First Amendment rights wherein reasonable intrusion by the State is permitted in order to prevent dissension among the citizens and to avoid causing undue injury. In formulating laws, the primordial concern of the lawmakers is the furtherance and protection of the interests of the public in general. Hence, the laws, most especially the Constitution, cannot be used as a shield in justifying one’s act of injuring another. As will be discussed, law and jurisprudence have laid down the guidelines in exercising the freedoms guaranteed by the First Amendment. So also, the limitations as to the exercise of First Amendment rights have been affirmed as necessary in order to regulate the conduct of citizens within the State.

The first right mentioned under the First Amendment is the freedom of religion. The free exercise clause proscribes the State from sponsoring a certain form of religion. The State must be impartial as regards the different forms of religion within the State.  But more importantly, this clause grants to the citizens the freedom to be respected in their choice of belief. A citizen cannot be compelled by the State to choose and to practice a certain type of religion. A citizen is free to choose his own religion and is free to do acts in accordance with his or her belief. The limitation imposed upon the free exercise clause is aptly stated by the Court in the case of Cantwell vs. Connecticut thus,

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be (310 US 296 (1940)).

Hence, it appears that while an individual is granted by the Constitution the freedom to believe and to act in accordance to one’s belief, the exercise of said right cannot be limitless. The acts of an individual must be regulated by the State, even if the same be done as a way of professing his belief, if the same is already detrimental or prejudicial the interests of the public in general. If an individual does an act which is in contravention with a prohibitive law, he cannot use his religion as a defense.

Infringement of said freedom is permitted when the unreasonable exercise of said right can cause danger and harm to the public interest. Although his freedom to believe is guaranteed by the Constitution, the same law cannot permit prejudice and injustice to prevail to spring from said freedom.

An individual shall not be excused from complying with a law by reason of his religious belief, especially if the object of the law is a legitimate purpose, and if the same is not an attack against religion. It must always be borne in mind that the paramount concern of our laws is to promote and serve public interest. Hence, if a certain action on the part of a citizen can be characterized as a frustration of the interest of the public in general, it cannot be considered as protected by the First Amendment.

The second part of the First Amendment speaks of the freedom of speech. Under this clause, one is free to express his own views and opinions.

This clause indeed strengthens the State’s belief in the concept of democracy as the opinion of citizens is given weight and importance. Under the Constitution, an individual cannot be restrained when it comes to airing out his opinions and views either orally, in print, or through other mediums of communication. It is noteworthy, however, that this right is also limited in operation in the sense that not every form or speech or communication is protected by the law. It is settled that “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problems” (Chaplinsky vs. New Hapshire, 315 US 568 (1942)). It thus appears that not every utterance enjoys the freedom granted by the First Amendment.

Examples of said unprotected speeches are libel and obscenity. Libelous words and statements cannot be countenanced under the law. The First Amendment cannot be used, for instance, as a justification for violating the right of another to privacy and to be free from undue vexations. It must not be forgotten that the freedom of speech is granted in order to recognize the value of the voice and views of the citizens. There can be no value as regards speech that are damaging to other parties.

As the same already inflicts injury to another person, the perpetrator is not permitted to seek shelter under the First Amendment. The same can be said about obscene publications, being in contravention and offensive to the concept of chastity and decency. It is because of the grave injury caused by said utterances to the public in general that made them fall outside the ambit of the First Amendment protection.

Lastly, the First Amendment speaks of the right of the people to peaceably assemble and to petition the government for the redress of their grievances. This is a fundamental right as the citizens are not restricted from gathering themselves in order for them to air out their opinions and bring their concerns to the government. In a number of cases, it has been settled that this right is connected to the freedom of expression since assembling and petitioning the government for redress is a form of expression.

Hence, it can be said that the same limits imposed on the freedom of expression clause in the First Amendment can be applied to the freedom to peaceably assemble and petition the government. In the exercise of this right, the assembly must not be tainted with any form of violence which could bring undue injury to the public. So also, in petitioning the government for redress of their grievances, the same must be for valid grounds and must not amount to seditious acts. Otherwise, the same shall fall outside the scope of the First Amendment and will not merit any protection under the law.

In the last analysis, it appears that the fundamental rights of religion, speech and peaceful assembly, although guaranteed by the First Amendment, cannot be exercised without limits. Said rights, while promoting the democratic character of our nation, must necessarily be regulated in order to avoid dissension among the citizens and in order to prevent undue injury.

A certain level of restriction is necessary for the purpose of making sure that the exercise of said rights is done in furtherance of the objectives of the Constitution—promote peace, order and unity in the society, and not to create conflict and injustice within the State. If said freedoms are accorded without any form of regulation, abuse cannot be avoided, and hence, the very instruments formulated to further public interest can even cause the frustration of said interests.