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Money as a Thumb on the Constitutional Scale: Weighing Speech against Publicity Rights

23 Pages Posted: 25 Jul 2009 Last revised: 7 Dec 2009

Diane Leenheer Zimmerman

New York University School of Law

Date Written: August 2009


Although they have differed in their approaches, courts deciding right of publicity cases have almost uniformly assumed that the appropriate way to test the constitutionality of the claim is to weigh the plaintiff's publicity interest against the defendant's free speech claim. The question left unanswered is what could possible give sufficient weight, in particular to a nonadvertising publicity claim, to allow it plausibly to outweigh the first amendment. The paper argues that no plausible jurisprudential predicate for this practice exists unless one is willing to accept the argument that interests expressed in economic terms are inherently weightier than traditional liberty interests. If this argument is unattractive, then the premise behind applying a balancing test for publicity claims is also flawed, leaving the tort The paper suggests that, at least outside the area of advertising uses, traditional first amendment analysis leave only the smallest of spaces for publicity rights.

Suggested Citation

Zimmerman, Diane Leenheer, Money as a Thumb on the Constitutional Scale: Weighing Speech against Publicity Rights (August 2009). Boston College Law Review, Vol. 50, p. 1503, 2009; NYU School of Law, Public Law Research Paper No. 09-43. Available at SSRN:

Diane Leenheer Zimmerman (Contact Author)

New York University School of Law ( email )

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