The Terminator as Eraser: How Arnold Schwarzenegger Used the Right of Publicity to Terminate Non-Defamatory Political Speech

Abstract

While it is no longer unusual for a politician to have been a recent celebrity in the commercial world of entertainment, the Schwarzenegger bobblehead case is one of the rare cases in which a politician has filed a lawsuit asserting a right of publicity claim. However, the Schwarzenegger case and its settlement exposed some basic flaws in the analysis of celebrity rights problems, flaws that are not unique to its political context. Two of those flaws converged in this case and are the main subjects of this article. First, rights of publicity claims frequently are used as a "stealth" alternative to defamation claims, in order to circumvent the constitutional limitations on defamation claims. Second, the analysis promulgated by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc. and its progeny, though recognizing some of the First Amendment problems posed by these cases, has serious faults that undermine its assertedly protective sphere. Both of these problems lead to the suppression of free speech and were at the root of the settlement in the Schwarzenegger bobble head case.