U.S. Supreme Court Refuses to Hear Hustler's Right-of-Publicity Appeal; Georgia Legislature Modifies State Open Records Law

On March 1, 2010, the U.S. Supreme Court declined to hear an appeal from Hustler magazine, allowing a right-of-publicity lawsuit filed against the magazine by the mother of a deceased professional wrestler to continue.

The lawsuit hinges on whether the publication of decades-old nude photographs of Nancy Benoit, a former model and professional wrestler, that accompanied an article about Benoit in the March 2008 issue of Hustler, was "newsworthy," or for commercial purposes. Benoit and her 7-year-old son were killed by Benoit's husband Chris Benoit, also a former professional wrestler, in a murder-suicide in their Georgia home in June 2007. The killings received widespread media coverage.

Maureen Toffoloni, the mother of Nancy Benoit and the administrator of her estate, filed a lawsuit in 2008 against LFP Publishing Group, Hustler's publisher, seeking damages for violation of Nancy Benoit's right of publicity under Georgia law, which protects an individual's right to control the use of his or her image for commercial purposes. According to Toffoloni's lawsuit, Benoit posed for a nude video for Mark Samansky about 20 years before her death. Benoit asked Samansky to destroy the video, but he never did, and Samansky later extracted still photos from the video and sold them to Hustler.

Hustler appealed a 2009 decision of the 11th Circuit U.S. Court of Appeals in which a unanimous three-judge panel held that the publication of the photos 20 years after they were taken did not fall under a "newsworthiness" exception to the right of publicity. The Supreme Court did not explain why it declined to hear the magazine's appeal in LFP Publ'g Group, LLC, 572 F.3d 1201 (11th Cir. 2009), cert. denied, 78 U.S.L.W. 3500 (U.S. Mar. 1, 2010), meaning the 11th Circuit decision stands, although the Supreme Court did not necessarily adopt the 11th Circuit's reasoning or conclusion.

In the 11th Circuit opinion, Judge Charles R. Wilson wrote on behalf of the panel that he was required to balance Benoit's rights of privacy and publicity with the First Amendment rights of the publisher, "with an eye toward that which is reasonable and that which resonates with our community morals."

LFP had argued that the article on Benoit's life, career, and death, accompanied by nude photographs of her, were of substantial public interest and should fall under the "newsworthiness" exception to the right of publicity.

Wilson noted that the cover of Hustler contained the advertisement "Wrestler Chris Benoit's Murdered Wife Nude," and the table of contents did not reference the actual Benoit article, which was itself entitled, "Nancy Benoit Au Naturel: The long-lost images of wrestler Chris Benoit's doomed wife." Wilson found that the photographs, and not the article, constituted the "heart" of the publication.

"The photographs published by [Hustler] neither relate to the incident of public concern conceptually nor correspond with the time period during which Benoit was rendered, against her will, the subject of public scrutiny," Wilson wrote. "[W]ere we to hold otherwise, [Hustler] would be free to publish any nude photographs of almost anyone without their permission, simply because the fact that they were caught nude on camera strikes someone as 'newsworthy.' Surely that debases the very concept of a right to privacy."

Wilson also determined that the nude photos of Benoit had economic value and Toffoloni was entitled to decide whether the photos were made public "in order to maximize the economic benefit to be derived from her daughter's posthumous fame."

LFP argued in its petition to the Supreme Court that the First Amendment requires that the "test for determining newsworthiness is to be construed broadly," and that the court should avoid becoming involved in "editorial decisions as to newsworthiness."

The petition also argued that previous Supreme Court cases, such as Time, Inc. v. Hill, 385 U.S. 374 (1967), have established that it is inappropriate for courts to decide whether an article is newsworthy.

The Reporters Committee for Freedom of the Press and the Society for Professional Journalists filed an amicus brief on behalf of Hustler in which the media groups argued that, if allowed to stand, the 11th Circuit decision would create an unclear standard in right-of-publicity matters, which could possibly chill news reporting. "The court has created the prospect of open-ended privacy tort liability for publications and newscasts regarding the deceased, who for more than a century have been consistently held not to have privacy rights," the brief said.

The U.S. District Court for the Northern District of Georgia had previously dismissed the lawsuit against Hustler in 2008 when a judge determined that Benoit's death was a "legitimate matter of public interest and concern" and the magazine's use of the photos was therefore protected by the First Amendment and Georgia law.

Georgia Lawmakers Add Crime Photo Exemption to Open Records Law

Georgia lawmakers have passed legislation that would exempt certain crime photos from the state's open records law after Hustler requested photos of the nude body of a woman killed while hiking.

The Georgia Bureau of Investigation (GBI) declined the magazine's request for the photos of Meredith Emerson, claiming that releasing them "would be an actionable invasion of privacy," the Atlanta Journal-Constitution reported on March 8, 2010. The beaten and decapitated body of Emerson, a 24-year-old graduate student, was found in January 2008 in the north Georgia woods.

DeKalb County Superior Court Judge Daniel Coursey issued a temporary injunction on March 10 that prohibited the GBI from releasing "any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state," CNN.com reported on March 11.

Fred Rosen, a true crime author on assignment for Hustler, requested the photos in February 2010 while working on a story about the crime, the Journal-Constitution reported.

The magazine's request was criticized by some state lawmakers. "It's sickening," Georgia House Speaker David Ralston (R-Blue Ridge) said in a March 9 Associated Press report. "I think it's disgusting. I think it is vile and I think it is very, very hurtful to this family."

On March 9, State Rep. Jill Chambers (R-Atlanta) introduced House Bill 1322, also known as the Meredith Emerson Memorial Privacy Act. The bill seeks to amend the state's open records law, Ga. Code Ann. § 50-18-72, and prevent the release of photos or videos that are "recordings of the personal suffering of a person in physical pain or distress [where] Public dissemination of such records would cause emotional distress to the person whose suffering was so recorded or to the family of such person." The law also prohibits the release of "photographs, videos, or other depictions compiled by law enforcement of any individual in a state of partial or complete nudity, depicting the dismemberment of a body part, or depicting an injured or deceased individual." The law states exceptions may be made for "bona fide credentialed members of the press."

"We have to walk the line between open record laws and the constitutional provisions that allow women to be able to be photographed nude or in pornography when they knowingly and willingly offer their bodies for dissemination," Chambers said in the CNN.com report. The Georgia House of Representatives unanimously passed the bill on March 16, and the Senate unanimously passed the bill on April 13. It had not been signed into law at the time the Bulletin went to press.

Some scholars have expressed concern that the legislation jeopardizes the public's right to access public information.

"Having access to ghoulish crime-scene photos that most anyone would not even for a second - not even for a second - want to see might be very, very important for certain requesters because there might be public interest in the photographs," said Charles Davis, executive director of the National Freedom of Information Center at the University of Missouri, the Journal-Constitution reported.

Davis said this public interest includes someone investigating a suspicious death that a coroner ruled resulted from natural causes. "There could be reason to believe it was a murder and those photos could be important," he said.





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