Beyond the First Amendment: Shaping the Contours of Commercial Speech in Video Games, Virtual Worlds, and Social Media

By using the intersection of existing trade law with the traditional publicity rights doctrine, the developing law of cyberspace can be applied to digital interactive media in predictable ways designed to protect against consumer fraud and protect the legitimate commercial interests of endorsers without impinging on the First Amendment. The system requires the more granular analysis that courts and regulators have applied in traditional media for decades. By using the core principles of existing law, the concerns about technological innovation diminish and continued advancement of free speech can be promoted. The FTC and FCC provide an established road map to follow.

If publicity rights doctrine is properly understood and used in a manner consistent with commercial speech jurisprudence, much of the tension between publicity rights and the First Amendment can be reduced, and the content system can be maintained to address the constantly changing landscape of interactive digital media.