The New York Times reports on a pair of lawsuits by prominent athletes against video game manufacturers for depicting characters who resemble the athletes. Last week, the U.S. District Court for the Central District of California issued an opinion dismissing a lawsuit by former NFL player Jim Brown against video game producer Electronic Arts. According to the opinion, Brown alleges that Electronic Arts “misappropriated his name, identity, and likeness by including him in the games . . . .” Brown claims that by using his persona without his permission, Electronic Arts was liable for false endorsement under the Lanham Act. Electronic Arts responds that the First Amendment provides a complete defense. Siding with Electronic Arts, the Court observes that “video games are a form of expression protected by the First Amendment.” It writes, “The Madden NFL video games are expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment.” The Court holds that because Brown’s persona is relevant to the games’ content and people playing the game will not be mislead into thinking that Brown endorses the game, the First Amendment protects Electronic Arts from his claim. The New York Times article mulls over the impact of the Brown lawsuit on a pending class action lawsuit filed by a former college player against Electronic Arts and the NCAA for depictions of college players in video games.

The Seattle Times publishes a guest column by Stephen Pidgeon of Project Marriage, arguing that the signatures of those who supported placing Referendum 71 on the ballot should not be made public. According to the Seattle Times, “R-71 asks voters whether to approve or reject a recently passed state law granting marriage-like benefits to same-sex couples who are registered domestic partners.” The Washington Secretary of State has received a number of public records act requests seeking the filed petition containing the signatures. Protect Marriage and anonymous individuals have sued the Secretary of State to prevent the disclosure of the signatures. In an opinion issued on September 10, the U.S. District Court for the Western District of Washington enjoined the Secretary of State from disclosing the signatures. The Court held that there is a First Amendment right to anonymous political speech that encompasses signatures in support of placing a referendum on the ballot. The Court then turned to the question of whether disclosure of the signature is narrowly tailored to advance a compelling governmental interest. The government had argued that “[a]bsent access to the names of persons who signed referendum petitions, the public would not be able to independently examine whether the State acted properly in determining whether a referendum measure qualified for the ballot.” The Court noted that the state already had a verification scheme created by statute. The scheme provided that “The verification and canvass of signatures on the petition may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process.” Because of the existence of the statutory verification scheme, the Court held that public disclosure of the signatures was not necessary. In his guest column, Pidgeon criticized the Seattle Times for advocating that the signatures be made public.

CNBC reports that the Supreme Court will decide whether to take up a case on the constitutionality of California’s law regulating videogames. The law was struck down by the district court and the Ninth Circuit.

Over at the First Amendment Center, Tony Mauro analyzes the First Amendment cases on the Supreme Court’s docket this term.