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- Title
DRAWING TRUMP NAKED: CURBING THE RIGHT OF PUBLICITY TO PROTECT PUBLIC DISCOURSE.
- Authors
KADRI, THOMAS E.
- Abstract
In enacting the antitrust laws, Congress sought to prevent big businesses from maintaining and augmenting their power through collusion, mergers, and exclusionary and predatory practices and also aimed to preserve the ability of workers to act in concert. At times, the antitrust laws have benefited ordinary Americans. Antitrust achievements include the restructuring of the oil industry in 1911, the creation of competitive market structures in the midtwentieth century, and the termination of AT&T's telecommunications monopoly in 1984. Yet, the history of antitrust in the United States is not one of uninterrupted successes. Over two forty-year periods, the executive branch and federal courts, in enforcing and interpreting the antitrust laws, have failed to advance Congress's vision and indeed inverted congressional intent. During the original and current Gilded Ages, the antitrust laws were and are used to protect the power of large-scale business and also to limit the autonomy of workers to organize and demand higher wages and better working conditions. Through this anti-labor application, the federal government has employed antitrust to aid big business, rather than restrain its power. Despite this history of accommodating capital and policing labor, the antitrust laws can still be reinterpreted and redeemed. Congressional, executive, and judicial action can remake these laws to control the power of large corporations and also protect the freedom of all workers to organize for higher wages and better working conditions. A renewal of antitrust, in accordance with the expressed purposes of Congress, would help remedy the inequities of the New Gilded Age and create a more just society. To adequately protect creators and their expressive works, this Article argues that we must abandon educative models of the First Amendment and instead adopt an approach that also protects the speaker as a central part of enabling public discourse. Failure to adopt this speaker-focused theory in publicity doctrine will perpetuate confusion in the courts and state legislatures, an outcome that will have a chilling effect on creators who seek to portray real people in their work. Yet we must also recognize the interests that publicity rights can serve. As we move into an era of new technology and innovation--from "deep fakes " to nonconsensual pornography-- this challenge will only intensify. To address it, courts should refer to the constitutional concept of "public discourse" when publicity rights face off against expressive rights--a concept that not only empowers free expression, but also considers the narrow interests that we should all have in preventing certain uses of our images.
- Subjects
UNITED States; PUBLIC disclosure of private facts (Tort); FREEDOM of speech; UNITED States. Constitution. 1st Amendment; PUBLICITY (Law); TRUMP, Donald, 1946-
- Publication
Maryland Law Review, 2019, Vol 78, Issue 4, p899
- ISSN
0025-4282
- Publication type
Article