Film’s free speech KO’s killer’s publicity rights

Image credit: Aceshowbiz.com
Image credit: Aceshowbiz.com

The true life story of Chris Porco, a University of Rochester student convicted of killing his father and attempting to kill his mother, seemed like something out of a movie. The story was so horrific that it drew national attention. And soon followed a Lifetime Television film, Romeo Killer: The Chris Porco Story, depicting the notorious protagonist’s criminal investigation, trial, and conviction. Once Porco learned of Lifetime’s plans, however, he sued the cable network for violating his publicity rights under New York law and sought to enjoin the company from airing the movie. A New York state court ruled in Porco’s favor, banning Lifetime from airing and promoting its film.

Now an appellate court has reversed that decision in a case that reminds about the conflicts when constitutional and individual (publicity) rights collide.

After the New York state judge banned Lifetime from airing its television movie, the cable network immediately appealed. Lifetime asserted the ban was an unconstitutional restraint on its free speech and caused “irreparable damage… to the constitutional protections for speech” in general.

A New York appellate court agreed, finding the temporary restraining order on Lifetime was “an unconstitutional prior restraint on free speech” because it suppresses speech based on its content before the expression of it has occurred. Since “prior restraints are the most serious and least tolerable of infringements on free speech,” Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), the court was loath to uphold the restraining order. Prior restraints are imposed only in most exceptional instance, where publication of speech will immediately cause irreparable societal injury, CBS v. Davis, 510 U.S. 1315, 1317 (1994), and this case failed that high bar, the court said.

The court — in vacating the TRO — noted that any potential harms caused by the film’s content would affect Porco only, not the general public, and he had remedies if he were wronged. (Let’s not even wonder aloud how, if remedies were pursued, how messy things might get with any subsequent outcomes just possibly affected by New York’s Son of Sam statutes, which exist in revision after Simon & Schuster Inc., Petitioner, v. The New York State Crime Victims Board et al, 502 U.S. 105 [112 S.Ct. 501, 116 L.Ed.2d 476)] )

Publicity rights fall in a gray area between individuals’ rights to protect their image and the public’s First Amendment right to speak and express freely on a particular individual or topic of interest. With states enacting generous publicity rights laws, many in the entertainment industry wonder if these laws will chill speech and limit innovation.

By the way, as of this writing the Lifetime website indicates the Porco movies will be broadcast May 4.