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Court's verdict in favor of actor violates First Amendment in myriad ways

Commentary

By Kenneth A. Paulson
Senior vice president, The Freedom Forum
Executive director, First Amendment Center

04.15.99

A "living treasure" is about to get richer.

Actor Dustin Hoffman has been awarded $3 million by a federal district court in a lawsuit against Los Angeles Magazine for a fashion feature the publication contends is protected by the First Amendment.

Magazines and newspapers run fashion pictorials all the time, and it's difficult to come up with a fresh approach. In this case, Los Angeles Magazine superimposed fashions over actors in classic movie scenes.

Elvis Presley was pictured in "Jailhouse Rock." Instead of prison garb, he was shown in a tennis sweater and shorts. Similar tongue-in-cheek treatment led to updated wardrobes for John Travolta in "Saturday Night Fever," Vivien Leigh in "Gone With the Wind" and Marilyn Monroe in "Gentlemen Prefer Blondes."

Twenty performers were lampooned, including Hoffman, whose head shot as the cross-dressing lead in "Tootsie" appeared atop a body wearing an evening gown.

Hoffman sued the magazine for misappropriation of his image. That led to the judge awarding Hoffman $1.5 million in compensatory damages and $1.5 million in punitive damages.

Referring to Hoffman as "a living treasure," the judge wrote: "The First Amendment provides extremely broad protection, but does not permit unbridled exploitive speech at the expense of Mr. Hoffman and his distinguished career."

The judge said the celebrities in the pictorial "were violated by technology," adding that "allowing this type of deceptive conduct under the guise of First Amendment protection would lead to further technological mischief."

Is this a troubling decision for a free press? Let us count the ways:

• The judge ruled the article was commercial speech and thus not entitled to full First Amendment protection. This was a news article, not an ad. The magazine told its readers what the new fashions were and what they cost. It didn't sell the clothes or solicit orders. This was not commercial speech (which also enjoys substantial constitutional protection).
• The judge said the article was "false speech." Even the most casual reader surely recognized these scenes were altered. Humorous or satiric images or text are constitutionally protected. See Larry Flynt for details.
• There was nothing "deceptive" about the layout. Hoffman testified that he objected because he refuses to do endorsements, and the article implied that he endorsed the dress or designer. Nonsense. Half the celebrities pictured are deceased. The concept and context were clear.
• While the layout concept was novel, the use of celebrities in tongue-in-cheek editorial content is commonplace. For example, an article in the current issue of PC Magazine about a company offering free computers is accompanied by an illustration of game show host Bob Barker holding a computer monitor. The headline: "The Price is Right."

The Hoffman case is on appeal, and the magazine's future is in the balance. Elvis Presley Enterprises has sued about the same article, and a June trial date has been set.

May the judge have a sense of the First Amendment — and a sense of humor.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212