FAQ: Questions and Answers

[back to notice text] Question: Does the First Amendment protect online speech? Answer: The First Amendment to the U.S. Constitution says that "Congress shall make no law ... abridging the freedom of speech, or of the press." Under the First Amendment and cases interpreting it, the federal government (and states, under the Fourteenth Amendment) must meet a high level of scrutiny before restricting any kind of speech. In the first Supreme Court case dealing with the Internet, Reno v. ACLU, the Supreme Court affirmed that online speech deserves as much protection as off-line speech. [back to notice text] Question: What is an "innocent fan fiction?" Answer: [back to notice text] Question: What is the right of publicity? Answer: The right of publicity is a right to prevent the unauthorized commercial use of someone's identity, including name, image, or likeness. A natural person (and that person?s heirs) can sue under this right if the person's likeness is used to advertise products, for example. Since the right of publicity only prevents unauthorized commercial use, however, it does not block use of the identity for a statement of public or social interest, including news reporting, for a work of art or entertainment, and if the use is not for profit nor a threat to the commercial value of the identification. [back to notice text] Question: What is false light invasion of privacy? Answer: "False light" is a claim that publicity invades a person's (plaintiff's) privacy by a false statement or representation that "places the plaintiff in a false light that would be highly offensive to a reasonable person." [back to notice text] Question: What good is a disclaimer? Answer: A disclaimer can help tell visitors what a website site is and isn't. Much of trademark law aims to prevent consumer confusion; a disclaimer of sponsorship or association with the trademark holder could help avoid confusion. In defamation law, statements of opinion are protected, but false statements of fact can be defamatory; a disclaimer could emphasize the opinion nature of a website. A disclaimer can help the humor-impaired to understand a parody site. A disclaimer won't tip the balance on a site that is blatantly violating the law, though, and one may not be necessary if the nature of the website is clear from its face. Think of it as a little special sauce. [back to notice text] Question: How does the First Amendment to the Constitution affect defamation? Answer: The free speech guarantees under the Constitution protect certain speech and commentary. The degree of protection generally depends on whether the person commented about is a private or public figure and whether the statement is regarding a private or public matter. According to the New York Times rule (from the case New York Times v. Sullivan), when the plaintiff is a public figure and the matter is one of public concern, the plaintiff must prove "malice" or "reckless disregard" on the part of the defendant. If both parties are private individuals, there is less protection for the speech because the plaintiff only needs to prove negligence. [back to notice text] Question: What does the "reservation of rights" language mean? What are they "waiving" at me? Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

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