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Fun Little First Amendment Puzzle:

Here's a new Oklahoma statute, 21 Okla. Stats. sec. 839.1A:

Any person, firm, or corporation that uses for the purpose of advertising for the sale of any goods, wares, or merchandise, or for the solicitation of patronage by any business enterprise, the name, portrait, or picture of any service member of the United States Armed Forces, without having obtained, prior or subsequent to such use, the consent of the person, or, if the person is deceased, without the consent of the surviving spouse, personal representatives, or that of a majority of the adult heirs of the deceased, is guilty of a misdemeanor. This section applies to the name, portrait, or picture of both active duty members as well as former members of the Armed Forces of the United States. Every person convicted of a violation of this section shall be punished by a fine of not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not to exceed one (1) year, or by both said fine and imprisonment.

Consider three possible applications of the statute: (1) Advertising of nonspeech products that isn't misleading -- i.e., doesn't suggest an endorsement that isn't there -- for instance if someone sells "Jarhead Beer" with a picture of some generally unknown marine on the label.

(2) Advertising of books, movies, or newspapers, e.g., an unauthorized biography of Colin Powell that has his name and likeness on the cover.

(3) T-shirts, bumper stickers, pins, prints, and the like that contain a servicemember's name or likeness (either an anonymous servicemember's or a more famous one's, such as Powell's or McCain's), and that are used to advertise themselves (for instance, when the T-shirt is hanging in a store window or sitting on the shelf).

And in considering them, ask two questions:

(A) Could a general right of publicity law, which purports to impose civil liability on the use of people's names and likenesses for commercial purposes, be constitutionally applied in these cases? Many states do indeed have right of publicity laws that differ from the Oklahama statute chiefly in that (i) they impose civil liability, not criminal, and (ii) they don't limit themselves to soldiers.

(B) Even if such a general law would be constitutional, would this narrower law still be impermissible, either because its narrowness makes it impermissibly underinclusive under the relevant standard of scrutiny (Central Hudson scrutiny for commercial advertising or strict scrutiny for otherwise fully protected speech), or because of R.A.V. v. City of St. Paul?

Ed Snible (mail):
Also, what about an independent bookstore's ad, offering to sell an autographed copy of Powell's My American Journey?

Or a carwash offering 25 cents off on Thursday, including a picture of a US quarter?
8.10.2006 3:28pm
Kevin L. Connors (mail) (www):
The only thing I find unsettling about this statute is that, as you said, it is criminal and not civil.

As it is commercial speech, I don't see any Constitutional question at all, except perhaps as a matter of legislative intent. How is it "narrow" when it includes, "or for the solicitation of patronage by any business enterprise," which pretty much pulls in all commercial advertising?

I'm not familiar with R.A.V. v. City of St. Paul. But I have a cursory familiarity with Central Hudson, which, to my understanding, had to do with a public utility advertising in what it saw as the public interest. I don't see how that would correlate to this?
8.10.2006 3:35pm
John Jenkins (mail):
I love my state legislature. 21 Okla. Stat. § 839.1 reads as follows
Any person, firm or corporation that uses for the purpose of advertising for the sale of any goods, wares or merchandise, or for the solicitation of patronage by any business enterprise, the name, portrait or picture of any person, without having obtained, prior or subsequent to such use, the consent of such person, or, if such person is a minor, the consent of a parent or guardian, and, if such person is deceased, without the consent of the surviving spouse, personal representatives, or that of a majority of the deceased's adult heirs, is guilty of a misdemeanor.


Why was this statute enacted at all? Probably because 21 O.S. § 10 reads as follows:
Except in cases where a different punishment is prescribed by this chapter or by some existing provisions of law, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding one year or by a fine not exceeding five hundred dollars, or both such fine and imprisonment.


That's right, they wanted to double the fine.

Interestingly, 21 Okla. Stat. § 839.2 provides a private right of action:
Any person whose right of privacy, as created in Section 1 hereof, is violated or the surviving spouse, personal representatives or a majority of the adult heirs of a deceased person whose name, portrait, or picture is used in violation of Section 1 hereof, may maintain an action against the person, firm or corporation so using such person's name, portrait or picture to prevent and restrain the use thereof, and may in the same action recover damages for any injuries sustained, and if the defendant in such action shall have knowingly used such person's name, portrait or picture in such manner as is declared to be unlawful, the jury or court, if tried without a jury, in its discretion may award exemplary damages.


Note that the private right of action only applies on its face to § 839.1, not § 839.1A.

I think there is definitely an R.A.V. problem with the new statute because I can't see how photographs or likenesses of military members are a "worse subset" of the probibited images.

Whether the laws as such are Constitutional I think has to do with who is depicted. I think the Court has already decided that public figures get less protection in other civil instances, so as long as a product didn't imply an endorsement by such public figure, I think it would be okay (e.g. McCain &Powell). For private figures, I think the statutes are probably okay. (yes, this is analogizing from defamation law, but that's all I've got, man.)
8.10.2006 3:35pm
John Jenkins (mail):
Ed Snible, your hypo is covered by 21 Okla. Stat. § 839.3, which provides exceptions to the general statute (though only 893.1 &not 893.1A by its terms, because that's the way the Oklahoma Legislature is). Whether the Oklahoma Supreme Court would interpret it to apply to $ 893.1A is anyone's guess.
8.10.2006 3:38pm
Byomtov (mail):
Would George Washington be considered to have been a member of the United States Armed Forces? If so, no President's Day sales in Oklahoma.
8.10.2006 3:44pm
Tracy Johnson (www):
At least it isn't Jihaad beer.
8.10.2006 3:45pm
JRL:
Would that include flag-draped coffins as well. Would that be considered a picture of a service member?
8.10.2006 3:49pm
tefta2 (mail):
Does anyone know the law about TV news shows using pictures of shoppers at a mall or pictures of people in a park, etc.
8.10.2006 3:52pm
Mike Z (mail) (www):
As an aside: are the fine and imprisonment intended to be equivalent? If $1000 = 1 year, that works out to $2.74/day.

And certainly, to many people, a $1000 fine is a lot less inconvenient than 1 year in jail.
8.10.2006 4:30pm
Kevin L. Connors (mail) (www):
I believe Washington would be considered a "Historical Figure," far more than a "Member of the Armed Forces."
8.10.2006 4:32pm
Third Party Beneficiary (mail):
"As an aside: are the fine and imprisonment intended to be equivalent? If $1000 = 1 year, that works out to $2.74/day."

That's a question I've always had too. Criminal fines are frequently absurdly small relative to the possible jail time.
8.10.2006 4:49pm
Kevin L. Connors (mail) (www):
Well, one also has to remember that fines frequently are accompanied by substantial penalty assessments, judges seldom hand out maximum sentences, and convicts seldom serve out their full terms.

I figured it out once for the typical traffic offender here in Orange County. And, unless he/she was making over $1000/week, net pay, it was more cost effective to ask for jail time.
8.10.2006 4:57pm
Third Party Beneficiary (mail):
"I figured it out once for the typical traffic offender here in Orange County. And, unless he/she was making over $1000/week, net pay, it was more cost effective to ask for jail time."

That's based on the rather dubious proposition that the cost of jail time is only forfeited earnings.
8.10.2006 5:01pm
Helen:
A huge portion of the adult population qualifies as "former members of the Armed Forces of the United States." No one could risk using a group scene.
8.10.2006 5:07pm
SacSays (mail):
Byomtov may have made a very good point. Unless there is some qualification not included in the statutory language we have here, this law seems to apply, not only to historical figures, but to virtually anyone who served in the armed forces at any time -- irrespective of whether the advertisement identifies them as a service member or former service member. For example, I don't see anything here that limits this to their being in uniform for the advertisement, or in any other way being associated with the military.

If that's so, this statute is quite overbroad, and whatever its purpose, I doubt it would be effective.
8.10.2006 5:20pm
KD (mail):
Why no mention of 44 Liquormart? Not only is it more recent, but it seems far more apt than RAV...though it has been a while since I studied my 1st Amendment jurisprudence

-kd
8.10.2006 5:45pm
Kevin L. Connors (mail) (www):
Third Party Beneficiary:

That's based on the rather dubious proposition that the cost of jail time is only forfeited earnings.

Quite true. For instance, one's employer might be aghast that one would choose, on an economic basis, to serve a week or two in jail, as opposed to paying a 4-figure fine. In that case, I would posit that one is likely being sorely underpaid.

Of course, there are other, less arguable cases, such as child-rearing. But it's important to make the distinction between the two.
8.10.2006 8:02pm
Nobody (mail):
I assume a newspaper can't publish the Abu Ghraib photos (at least, not above the fold on page 1, where they might induce someone to buy the paper.)
8.10.2006 10:26pm
Mikeyes (mail):
All presidents are, according to the constitution, members of the armed forces since they are the Commander In Chief (we are only one of a few countries whose constitution has that provision)so any business or charity with the name of a president attached is fair game under this law. It is unlikely that a "majority of adult heirs" will be able to agree to the use of the image since, depending on how the term heirs is interpreted, they may be hard to find for most of them.

I assume this law was designed with a particular incident in mind and probably good intentions, but with unintended consequences. It always amuses me to see this sort of thing happen in legislatures when any person with common sense can see the potential problems after one reading.

But then who said that pandering for votes lead to common sense?
8.11.2006 11:57am
Sparky:
With respect to George Washington (and similarly situated former service members), would it be a defense that obtaining the consent of "a majority of the adult heirs of the deceased" was impossible?
8.11.2006 12:02pm
Kevin L. Connors (mail) (www):
Wow, interest in this certainly has waned.
8.11.2006 10:43pm