Last month, the U.S. Supreme Court surprised a lot of observers by striking down the Stolen Valor Act, a federal law that had criminalized false claims about military honors. Part of the surprise was the high court upheld a ruling from the Ninth Circuit, despite a dissent from Judge Jay Bybee, who usually sees eye-to-eye with the high court.
On Friday it sounded as if the surprise still hasn't quite worn off on Bybee. In Brown v. Electronic Arts, a lawyer for football legend Jim Brown was arguing that the video game maker was misleading buyers by using Brown's likeness in the game without authorization.
"We don't think anyone has a First Amendment right to speak in a confusing manner," Ronald Katz told a panel of judges including Bybee.
"Although the court just recently told us that you can lie," Bybee said. "So the likelihood of confusion seems like maybe a possibility under the First Amendment -- if you can lie about things."
"I haven't studied that Medal of Honor case," Katz told him. "But that was a disturbing case."
It's safe to say Katz won't get any argument from Bybee on that point.
"Although the court just recently told us that you can lie," Bybee said. "So the likelihood of confusion seems like maybe a possibility under the First Amendment -- if you can lie about things."
I can hardly believe that EA sports would attempt to profit from the fame of a football legend and then not even fess up about it.
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I haven't played the game but if it appears obvious that EA used Brown's likeness I think that true fans of the NFL and the players that made it great should boycott this game maker.
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