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Nancy Benoit's Mom Wrests Right to Daughter's Pics from Hustler

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By Tanya Roth, Esq. on March 03, 2010 12:01 PM

This Monday, the Supreme Court refused to hear an appeal from that old friend of the First Amendment, publisher Larry Flynt. According to CNN, Flynt and his magazine Hustler, were sued by Maureen Toffoloni, the mother of slain wrestler Nancy Benoit, after the mag published two decade-old nude pictures of her daughter a year after she and her son were killed by her husband, wrestler Chris Benoit.

The 11th Circuit Court of Appeals found that in this case, the family's right to control images of Benoit trumped the magazine's right to publish them. In her suit, Benoit's mother claimed that shortly after her daughter posed nude, she had a "change of heart" and asked that the pictures and accompanying video be destroyed. The photographer, Mark Samansky, did not destroy the video but sold the stills from it to Hustler, which then printed them with a short biography of Benoit in its March, 2008 issue.

According to the court's decision, the right of publicity (the right to control use of your likeness), stems from the right of privacy. An exception of the right of privacy may be made for the First Amendment right of the press right to publish "newsworthy" items. The court found that the lag in time between the murder of Benoit and paucity of "news" accompanying the photos did not make them newsworthy. "The photographs published by [Flynt] neither relate to the incident of public concern conceptually [the murders] nor correspond with the time period during which Benoit was rendered, against her will, the subject of public scrutiny," the appellate court wrote.

CNN reports that in their brief filed in support of Hustler, the Reporters Committee for Freedom of the Press said the appellate court's ruling "makes no sense, as it goes well beyond the photographs that appear in magazines such as petitioner's to affect all news-gathering." The committee is concerned that allowing the court's decision to stand will infringe on the rights not just of that great bastion of freedom Hustler, but of news gathering agencies across the country, including CNN. 

The Supreme Court's refusal to hear the case allows the suit by Toffoloni to continue against Flynt for publishing the pictures without permission.  

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