This morning, the Supreme Court ruled that a law that outlaws promoting or advertising -- "pandering" -- child pornography is constitutional and does not interfere with First Amendment freedoms. In the case, United States v. Williams, decided 7-2, the justices declared that there is no free speech right that protects "offers to provide or requests to obtain child pornography," even if (in fact) there is no pornography to be provided. Free speech expert and blogger Eugene Volokh explains that the case is actually more interesting than a simple child pornography case, as the court has, in his reading, recognized that the First Amendment does not protect solicitations (or offers) to commit a crime. He writes: "[t]rying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones." 

Wendy Kaminer wrote about this case on The Free For All back in November. 

By Harvey Silverglate

I was reminded of the convoluted mish-mash that First Amendment law has become (thanks, in large measure, to courts not taking seriously the First Amendment's admonition that the legislature "shall make no law ... abridging the freedom of speech, or of the press") after I read Geoff Edgers' article in yesterday's Boston Globe.

Edgers reports that painter Kurt Kauper's paintings of iconic athletes in the nude – including Boston Bruins hockey players Bobby Orr and Derek Sanderson, among others – have been featured at important art institutions and in prestigious galleries. Edgers is careful to report that these paintings derived solely from the artist's imagination; neither Orr nor Sanderson, nor Kauper's other "subjects," actually posed for the painter, whether nude or clothed. One theme running through Edgers' profile of Kauper and his work is whether the subject of such an imaginary portrait has any legal claims or rights against the artist.

Boston entertainment and copyright lawyer George Tobia, Jr., told Edgers that "there's a First Amendment right to artistic expression," and that as a result Kauper (and other artists with similar subjects in mind – or on canvas) might realistically encounter a legal problem were he to try to exploit the athlete's image for commercial purposes, such as by reprinting the image on t-shirts or post-cards and then selling them. But merely to paint the image of a public figure – and presumably to sell the painting, though Tobia does not address this – is constitutionally protected.

While Tobia correctly notes the First Amendment's protection of art, the answer isn't as simple as the Globe's summary of his explanation makes it seem. Imagine an artist who paints a portrait of a clergyman in his birthday, where the artist has extrapolated, from the clergyman's clothed image, what he might look like nude. Would the painter be liable for defamation if he did not make it sufficiently clear, in some way, that the clergyman subject did not actually appear in the flesh for a nude portrait? It's reasonable to think that a professional athlete might not have as strong a defamation claim as a clergyman; after all, some athletes would proudly display their various physical endowments to their adoring fans – more so, one assumes, than clergymen. This factor is especially strong in today's media- and publicity-heavy society, in which the image of the athlete's body is indelibly linked to his or her performance. But it's possible to consider counterexamples – Red Sox pitcher Curt Schilling might be one – who cultivate a "family values" image more than a "virile jock" image. For Schilling, his reputational interest against nude images of himself could conceivably make a stronger case in a defamation lawsuit than the reputational interest of, for example, Olympic swimmer Michael Phelps.

For Phelps, whose work attire consists of goggles and a Speedo, any reputational interest in avoiding (fictional) "revealing" images of his (imagined) body would likely be undermined by the fact that a Speedo doesn't leave much to the imagination. He would be hard-pressed to argue that a nude portrait, even where the artist failed to note that the subject did not pose in the buff, would alter any "family values" aspect of his image or reputation (as it presumably would in the Schilling example) substantially more than a Sports Illustrated portrait of him in a Speedo would. Of course, this is an extreme example, as Orr and Sanderson wore pads and jerseys, not performance swimwear. But it's easy to picture how similar scenarios might play out.

And while Attorney Tobia is correct in noting that the painter could be in trouble if he were to put the athlete's picture on a post-card and capitalize on the subject's fame – assuming there is a market niche for nude portraits of famous athletes, even when the specific contours arise from out of the painter's imagination – there are more subtle questions that could arise. What if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?

The fact is that intellectual property, as well as defamation law, poses real headaches to artists seeking to exercise their artistic freedom – which is protected, in theory, by the First Amendment. Photographers have long experienced this problem – taking a photograph of a street scene and then receiving a letter from the lawyer of some subject standing on the street, captured in the photograph, seeking either compensation or a cease-and-desist order against circulation of the photograph. But these threats to artistic freedom, arising in particular out of street scenes, are frequently without merit. Photographers may find solace in a recent New York court decision, Nussenzweig v. DiCorcia, in which the court threw out a privacy lawsuit and agreed that street photographs, which clearly identify a man walking down a street and were taken without the subject's permission, are protected by the First Amendment even when they are later sold – so long as they were taken as art, and not intended to advertise a product or sell something other than the image itself. To that end, the court noted that "first amendment protection of art is not limited to only starving artists."

Some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness. California, for example, has a robust "right of publicity", which people can invoke in order to control how their image is used. (This is no surprise, given the number of movie stars in that state who vote and make campaign contributions.) However, other courts around the country have limited the right to control one's image as a means of controlling publicity, given the obvious tension with the First Amendment's protection of free artistic expression. In 2003, a California court rejected rock guitarists Edgar and Johnny Winter’s lawsuit against D.C. Comics for publishing a comic book that depicted their bodies as being half-man, half-worm. The court explained that the comic book contained "not just conventional depictions of [the Winter brothers] but contain significant expressive content other than plaintiffs’ mere likenesses."

The defamation problem, coupled with the "right of publicity," are legal issues that could give legitimate artists like Kauper headaches. Life might be easier if the courts interpreted the First Amendment's admonition that "Congress shall make no law ... abridging the freedom of speech" as meaning, literally, none at all. But it's simply not that easy. After all, the Constitution's copyright clause provides for laws granting the creators of intellectual property a legal ownership interest in that property. The occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications.