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

When courts in right of publicity cases deal with claims against defendants arising outside the context of commercial advertising but involving what judges nonetheless deem to be commercial uses, the typical approach is to “balance” a defendant’s right of free speech (that is, her right to use information legitimately in her possession) against a plaintiff’s exclusive right to control commercial uses of her persona. Considerable variation exists among the tests used to determine when a use is “commercial” rather than purely expressive, but if the defendant has crossed the line drawn by a given jurisdiction, then her constitutional liberty interest is quite likely to be treated as inferior to the property interest in her persona claimed by the plaintiff. This Article takes the position that balancing economic interests against constitutionally protected speech rights, while not always forbidden, is generally impermissible and cannot be justified, consistent with the Supreme Court’s free speech jurisprudence.