Paul Watler's Podcast: "The Perfect Pitch: The First Amendment"

Author's note: My partner Chip Babcock is not the only one with baseball and free speech on his mind as we head into the pennant races. Here's a closer look at the recent right of publicity case referenced by Chip in his column this month. Let's just say the boys of summer went down swinging.

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When the perfect fastball comes over the plate, it leaves nothing but air and slack-jawed wonder in its wake. The pitch is too powerful to swing at, too fast to even bring the bat around.

In the courthouse, that perfect pitch is the First Amendment. Our constitutional guarantee of freedom of speech is the ace that can't be touched.

That was the exhibition that the Eighth U.S. Circuit Court of Appeals mounted for Major League Baseball in 2007. The umpires at the U.S. Supreme Court saw it the same way when denying a certiorari petition on June 2, 2008.

In CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), the Eighth Circuit ruled that baseball's efforts to shut down a commercial fantasy baseball league could not survive First Amendment scrutiny.

According to the court's opinion, here's what happened. The Internet media division of Major League Baseball claimed that a fantasy sports web site that used professional player's names and statistics without a license violated the players' right to publicity.

The online fantasy league operated by CBC Distribution and Marketing charged participants fees to draft a team of major league players to compete against other teams. The fantasy league made use of the names, performances, and biographical data of actual major league players.

MLB sent a cease-and-desist letter to CBC contending the fantasy league violated an exclusive license granted by the players' association to MLB's Internet division. CBC sought a declaratory judgment that its activities did not infringe any state-law right of publicity that belonged to the players.

The district court granted summary judgment to CBC, the fantasy league operator.

The Eighth Circuit concluded in 2007 that Major League Baseball had proved the three essential elements of the right of publicity claim. First, CBC was using the players' names as a symbol of their identity. Second, the use was without consent. Third, CBC acted with the intent to obtain a commercial advantage.

This looked like three strikes for CBC. But instead of going down swinging, the upstart challenger to the Big Leaguers argued that the First Amendment trumps the right of publicity that MLB had proven under state law.

The Eighth Circuit noted that the information used in CBC's fantasy games is readily available in the public domain. And, the court wrote, "it would be strange law that a person would not have a First Amendment right to use information that is available to everyone."

The court relied on a 1996 10th U.S. Circuit Court of Appeals decision, Cardtoons L.C. v. Major League Baseball Players Association, and a 2001 California state intermediate appellate opinion, Gionfriddo v. Major League Baseball, in finding that the discussion of the athletic feats of ball players deserved the same First Amendment protection as speech that informs a political debate. The Eighth Circuit wrote that the public has an enduring fascination in baseball players' records and, therefore, such speech is a form of expression that merits substantial constitutional protection.

Bolstering the Eighth Circuit's analysis was the fact that the state-law interest in protecting the individual's right to commercially exploit his own name was not implicated. The court concluded that the CBC fantasy league presented no danger to the players' ability to earn handsome rewards for their athletic feats.

And, so it went into the record books as a shut-out for Major League Baseball. Completing the sweep, the U.S. Supreme Court denied MLB's petition for certiorari earlier this month. The real life sluggers of the Big Leagues stood at the plate, but they couldn't lay a bat on the First Amendment fastball of a bunch of fantasy players.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer. An archive of previous First Amendment podcasts can be found here.