Stacy Allen Speaks

Stacy Allen Speaks Breaking the First Amendment Barrier

It is said that good facts make bad law. In a recent right to publicity decision from a California federal court, the mystique of American hero Chuck Yeager and an unfortunate admission by the author of a press release using his name were key factors in defeating defendant's First Amendment summary judgment motion, and further blurring the boundaries of a celebrity's economic interest in his or her reputation on the one hand and free expression on the other.

Central to the decision in Yeager v. Cingular Wireless, LLC, 2009 WL 4730913 (E.D.Cal.) was a May, 2006 news release in which defendant Cingular Wireless (now called AT&T Mobility) announced the installation of emergency preparedness equipment in response to service outages caused by Hurricanes Katrina, Wilma and Rita. The fifth paragraph of that publication stated:

"Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our Mach 1 and Mach 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers."

This was the only reference to Yeager in the 755 word text. The news release did not include Yeager's picture, did not use his name in any heading, did not propose a commercial transaction, did not offer for sale any specific products or services, and did not state that Yeager endorsed any Cingular products or services. At his deposition, the company executive who authored the press release admitted that the two-fold purpose was to demonstrate the company's commitment to restoring service quickly after a natural disaster, and "to create positive associations in people's mind with the AT&T brand so they would think highly of the company." He had also sought to play off the equipment's MACH acronym by making an association between breaking the sound barrier and breaking new barriers in emergency preparedness.

Yeager sued on California's common law and statutory right to privacy, the Lanham Act and other grounds. Yeager contended that his name was used in the news release to capitalize on his "name, reputation and iconic image", and as a "hook" to entice an audience to read about Cingular's improved services. Cingular moved for summary judgment, arguing that the First Amendment protected the press release because it contained newsworthy matter and was not commercial speech.

The federal district court began its analysis by noting that while California law recognizes "the right of a person whose identity has commercial value – most often a celebrity – to control the commercial value of that identity", the First Amendment requires that this right "be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press." However, the court noted, commercial speech which uses an aspect of the celebrity's identity to sell a product, does not "implicate the First Amendment's protection of expressions of editorial opinion," and use of a plaintiff's identity without consent to promote an unrelated product renders such speech actionable.

Despite Cingular's contention that it was undisputed that its news release "does not propose any commercial transactions and does not offer any products or services," the court nonetheless ruled it was commercial speech for purposes of Cingular's First Amendment defense. Noting that the "central theme" of the release is how Cingular's emergency preparedness program enhances its wireless services, the court found the following factors significant: Cingular's name as a service provider was mentioned multiple times throughout the release; the release did not seek to inform the reader about emergency preparedness generally, but rather about how Cingular's wireless service specifically had been improved to handle such emergencies; and the admission by a company executive that the purpose of the release, in part, was to create positive associations with defendant's brand. "As such," the court held, "it is reasonable to infer that defendant had an economic motivation underlying the Publication's distribution."

Rejecting Cingular's argument that its press release dealt with matters of public interest (including public safety concerns in the wake of the recent hurricanes and whether its customers can continue to rely on its services during a natural disaster), the court found that Yeager's name and accomplishments were used to attract attention to defendant's unrelated wireless services:

"While emergency preparedness and the availability of wireless services following a natural disaster are matters of public interest and concern, ... the Publication was not purely informational in nature; rather, it is properly characterized as commercial speech because ... it aimed to positively market defendant's services by linking them to that public concern. Further, plaintiffs' name and accomplishments in breaking the sound barrier are wholly unrelated to defendant's mobile command centers and cellular service in emergency situations. Indeed, as reflected [in the executive's testimony], the use of plaintiff's name was carefully crafted as part of a strategy to promote defendant's brand."

In denying summary judgment, the Yeager court looked past the absence of traditional indicia (such as offer for sale, repetition or prominence of use of name or likeness, or purported endorsement) to the "central theme" of the "[p]ublication as a whole", thus making pre-publication evaluation of exposure to right to publicity claims by future speakers even more difficult. In light of Yeager and other decisions extending the right of publicity to less obvious "misappropriations", those contemplating the use of another's name or persona in a publication should carefully consider their potential liability in this fluid area of the law.

— Stacy Allen is a partner at Jackson Walker. He can be reached at stacyallen@jw.com.