U.S. Supreme Court denies review in right of publicity and anti-SLAPP cases

The odds are never in your favor when seeking U.S. Supreme Court review. Out of the 7,000 – 8,000 petitions for a writ of certiorari received each term, the Court grants and hears oral argument in around 80 cases. Thus, this morning’s news that the Court denied review in two cases of media law interest came at no surprise.

The High Court denied cert in EA v. Davis and Mebo International v. Yamanaka, leaving open questions of right of publicity, the First Amendment, and the application of state anti-SLAPP statutes in federal court.

EA v. Davis asked the Court whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work. Former NFL player Michael Davis sued Electronic Arts, the producer of Madden NFL, for violations of his right of publicity. EA filed a motion to strike under California anti-SLAPP statute asserting Davis’ claim was barred under the First Amendment. The Court’s denial of cert left in place the Ninth Circuit’s affirmation of the district court’s denial of EA’s motion to strike.

Mebo International v. Yamanaka asked the Court whether state anti-SLAPP statutes are properly applied in federal diversity cases, or whether doing so runs afoul of the Erie doctrine. The Court’s denial cert left in place the Ninth Circuit’s ruling that the California anti-SLAPP statute does apply in federal court.



United States Supreme Court to review First Amendment challenge to police officer’s demotion after obtaining campaign sign

The United States Supreme Court granted certiorari in 13 cases Thursday, including Heffernan v. City of Paterson.

In Heffernan, Jeffrey Heffernan, a police officer in Paterson, New Jersey, was demoted after being seen picking up a campaign sign of a local mayoral candidate for his mother. Heffernan filed an action under 42 U.S.C. § 1983, alleging violations of his First Amendment rights of freedom of speech and association.

The United States Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) affirmed the District Court’s dismissal of his 1983 claim on summary judgment, reasoning:

Because Heffernan has failed to come forward with evidence that he actually exercised his First Amendment rights, and because claims of retaliation based only on the perceived exercise of those rights are foreclosed by Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997), we will affirm the District Court’s order.

The question before the Supreme Court is as follows: Does the First Amendment bar a local government from demoting one of its employees because a supervisor believed that the worker supported a political candidate?

Oral arguments in Heffernan will likely begin in January or February.