The Volokh Conspiracy - 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?

	[Eugene Volokh, August 10, 2006 at 2:15pm] Trackbacks 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?