Today the Supreme Court of the United States issued an order that will allow a privacy case against the Hustler Magazine to continue in lower courts. In March of 2008, less than a year after she was murdered by her wrestler husband, naked photos of Nancy Benoit were published in the magazine. Nancy Benoit’s mother Maureen Toffoloni, sued the magazine, claiming that her daughter had asked immediately after the shoot to have the photos and video destroyed and believed that photographer Mark Samansky had done so. Hustler magazine asked the court to dismiss the action, arguing that publication of the pictures was protected by the First Amendment. The Appeals Court ruled against Hustler magazine in June, allowing the lawsuit to go forward. Hustler appealed the decision and the Supreme Court let stand the lower court’s ruling.
The June ruling provides insight into the Appeals Court’s interpretation as to how the right to privacy serves as the underpinning for the right of publicity. The court noted:
Importantly, the Supreme Court of Georgia has specifically held that, except as required by law, “the body of a person can not be put on exhibition at any time or at any place without his consent.”
From this right to be free of the public’s illegitimate gaze, Georgia extrapolated a right of publicity– a right to control if, when, and under what circumstances one’s image is made public and subject to scrutiny.
But what about freedom of the press and newsworthiness? The court reasoned:
This case requires us to consider the nature and extent of the newsworthiness exception to the right of publicity. “It is in the determination of newsworthiness – in deciding whether published or broadcast material is of legitimate public concern – that courts must struggle most directly to accommodate the conflicting interests of individual privacy and press freedom.”
After noting that the publication of the pictures, by themselves, would not meet the newsworthiness except, the court explains:
Here, however, LFP published the photographs alongside a biographical piece on Benoit’s career. The biographical piece, in and of itself, certainly falls within the newsworthiness exception. See generally Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876 (1988). The question before us is whether a brief biographical piece can ratchet otherwise protected, personal photographs into the newsworthiness exception.
Although LFP argues that the photographs were illustrative of the substantive, biographical article included in Hustler, our review of the publication demonstrates that such is not the case. These photographs were not incidental to the article. Rather, the article was incidental to the photographs…… The heart of this article was the publication of nude photographs– not the corresponding biography.
Furthermore, we are convinced that the nude photographs are not connected to the incident of public concern. LFP would have us rule that someone’s notorious death constitutes a carte blanche for the publication of any and all images of that person during his or her life, regardless of whether those images were intentionally kept private and regardless of whether those images are of any relation to the incident currently of public concern. We disagree.