Zacchini v. Scripps-Howard Broadcasting Co.

Justice White wrote for the majority. He held first that, because the Ohio Supreme Court based its decision on the scope of protection offered to the press by the Federal constitution (rather than the Ohio state constitution), no adequate and independent state ground existed for the Ohio Supreme Court's decision, and the U.S. Supreme Court therefore had jurisdiction.

Moving on to the substantive constitutional issue of the case, White disagreed with the Ohio Supreme Court that the press should be privileged in showing Zacchini's entire act. He distinguished this case from Time, Inc. v. Hill,[4] the U.S. Supreme Court case upon which the Ohio Supreme Court relied in their opinion. Time, Inc. v. Hill was a case which dealt with the tort of "false light", i.e. portraying a person in a misleading or embarrassing manner, rather than the appropriation of a performer's act or likeness, which was at stake there. White analogized Zacchini's interest in protecting his act from being shown without his permission to those interests protected by patent and copyright: Zacchini not only had a commercial interest in being compensated for the time and effort involved in his performance, but also the "economic incentive for him to make the investment required to produce a performance of interest to the public".[5] White concluded by saying that while a state government may pass a law shielding the press from liability for broadcasting performers' acts, the First and Fourteenth amendments do not require the states to do so.

Justice Powell, joined by justices Brennan and Marshall, disagreed with the standard set forth by the majority. Powell felt that the majority concentrated too heavily on the fact that the footage which was broadcast constituted Zacchini's "entire act" (which, Powell noted, was a rather uncertain standard in itself), rather than examining the purpose for which the footage was used. Since the footage was used for the purpose of reporting news, rather than for commercial exploitation, Powell asserted that the television station's use of the footage should be considered privileged from liability. He worried that the majority's holding may have a chilling effect on freedom of the press:

The Court's holding that the station's ordinary news report may give rise to substantial liability has disturbing implications, for the decision could lead to a degree of media self-censorship. Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act," he may decline coverage – even of clearly newsworthy events – or confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster.[6]

Justice Stevens wrote a separate dissent. He felt that a better resolution of the case would have been to remand it back to the Ohio Supreme Court for clarification of the state law issue before attempting to resolve the constitutional issue. Stevens felt that it was not clear whether the Ohio Supreme Court was basing its holding purely on the boundaries of common law torts or the First Amendment.