ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO. (Cues 975.2849 (1977) 433 US, 562 pronouncement that the operations of the Office of the President may be severely impeded by Congress simply because Con- sgress had a good reason for doing so. Surely if ever there were a case for “bal- acing.” and giving weight to the asserted “national interest” to sustain governmental action, it was in the Steel Seizure Cases, supra’ There the challenged Presidential Executive Onler recited, without contradic- tion by its challengers, that “American fighting men and fighting men of other nations of the United Nations are now en- caged in deadly combat with the forces of aggression in Korea”; that “the weapons ‘and other materials needed by our armed forees and by those joined with us in the defense of the free world are produced to a sgreat extent inthis country, and steel is an indispensable component of substantially all of such weapons and materials"; and that & work stoppage in the steel industry “would immediately ,eopardize and imperil our na- tional defense and the defense of those Joined with us in resisting aggression, and ‘would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.” $48 U.S,, at 590-591, 2 SCt, at 868 (App. to opinion). Although the “legislative” actions by the President ould have been quickly overridden by an Act of Congress, id, at 67%, 72 S.Ct, at 989-984 (Vinson, CJ., dissenting), this Court struck down the Executive Order as violative ofthe separation-f-powers prin ple with nary a mention of the national interest tobe fostered by what could have heen characterized as a relatively minimal and temporary intrusion upon the role of Congress. The analysis was simple and straightforward: Congress had exclusive thority to legislate; the President's Exec- Order was an exercise of legislative power that impinged upon that authority of| Congress, and was therefore uneonstitution- & For the reasons set forth by THE CHIEF JUSTICE, ante, at 2525-2826, tis clear that the circumstances in United States ¥. Nixon Involving @ arrow request for specified docu ments in connection with a erinal prosect 2849 al. Id, at 588-589, 72 S.CL, at 867-868. See also Buckley v. Valeo* AI think that no only the Executive Branch Of the Federal Government, but the Legis- lative and Judicial Branches as well, wil ‘come to regret this day when the Court has upheld an Act of Congress that trenches so significantly on the functioning of the Of- fice of the President. I dissent. 488 US, 562, 53 LBL2d 965 Hugo ZACCHINI, Petitioner, SCRIPPS-HOWARD BROADCASTING COMPANY. No. 16-577. Argued April 25, 1977, Decided June 28, 1977, A performer in a “human cannonball” ‘act brought an action against a television broadeasting company to recover damages allegedly suffered when, against his wishes, the broadcasting company videotaped the ‘entire performance and played the video- tape on a television news program. The Ohio Court of Appeals reversed the trial ‘court’s action in entering summary judg- ‘ment for the broadcasting company, and the Ohio Supreme Court, 47 Ohio St.2d 224, 351 N.E.2d 454, rendered judgment for the Droadeasting company on the grounds that it was constitutionally privileged to inelude matters of public interest in its newscasts which otherwise would be protected by the right of publicity, absent an intent to injure tion, provide no support forthe Court's use of a balancing test na case such as this where the seizure 8 broad and undifferentiated intr Sion into the daily operations of the Office of the President be2850 ‘or to appropriate for some nonprivileged purpose. On certiorari, the United States Supreme Court, Mr. Justice White, held that although the State of Ohio might, as a matter ofits own law, privilege the press in the circumstances of the case, the First and Fourteenth Amendments did not require it to do so. Reversed. Mr. Justice Powell dissented and filed ion in which Mr. Justice Brennan and Mr. Justice Marshall joined. Mr. Justice Stevens dissented and filed opinion, 1. Federal Courts 510 If judgment below rested on indepen- dent and adequate state ground, writ of certiorari should be dismissed by United States Supreme Court as improvidently ‘granted, since Court's only power over state Judgments is to correct them to extent that they incorrec:ly adjudge federal rights. 2, Federal Courts ¢=511 Supreme Court, in reviewing decision of Supreme Court of Ohio by certiorari, could consult that Court’s opinion as aid in understanding Court's syllabus. 8, Federal Courts <=504 ‘That Ohio Supreme Court might have, but did not, invoke state law in arriving at its decision did not foreclose certiorari juris diction in United States Supreme Court. 4, Federal Courts #504 Where, even if judgment of state su- reme court was to be understood as ulti- mately resting on state law, it appeared that at very least such court felt compelled by what it understood to be federal consti- tutional considerations to construe and ap- ply its own law in manner it did, United States Supreme Court had jurisdiction, on rant of certiorari, to decide the federal issue, for if state court erred in its under- + The syllabus constitutes no part of the opinion ‘of the Cour but has been prepared by the Reporter of Decisions for the convenience of 97 SUPREME COURT REPORTER 433 US, 562 standing of Supreme Court's cases and of applicable constitutional provisions, court should so declare, leaving state court free to decide controlling iseue solely as matter of state law. 5. Constitutional Law ©=$0.1(9), 274.1(2) First and Fourteenth Amendments did not immunize television broadeasting eom- pany when it broadcast “human cannon- ball” performer's entire uet without his con- sent, although state could, as matter of its own law, privilege the press in such eireum- stances, US.CA.Const. Amends. 1, 14; Civil Rights Law N.Y. §§ 60, 51; 17 USC. A.App. § 101 et seq. 6, Constitutional Law =90.1(6) Entertainment, as well as news, enjoys First Amendment protection. US.C.A. Const. Amend. 1. Syllabus * Petitioner's 16-second “human cannon- ball” act, in which he is shot from @ cannon into a net some 200 feet away, was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for re- spondent broadeasting company and shown on @ television news program later the same day. Petitioner then brought @ damages action in state court against respondent, alleging an “unlawful appropriation” of his “professional property.” The trial court's summary judgment for respondent was re- vversed by the Ohio Court of Appeals on the ‘ground that the complaint stated a cause of action. The Ohio Supreme Court, while recognizing that petitioner had a cause of under state law on his “right to the publicity value of his performance,” never- theless, relying on Time, Inc. v. Hil, 385 US. 814, 87 S.Ct. 534, 17 L.EA.24 456, ren- dered judgment for respondent on the ‘ground that itis constitutionelly privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to the reader, See United States v. Detroit Tim: ber & Lumber Co,, 200 U.S. 321, 337, 26 S.Ct 282, 287, 50 LEG 2d 498,ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO. ‘Cteas 975.c1. 2849 (1977) 433 US. 564 injure or to appropriate for some nonprivi- leged purpose. Held 1. Tt appears from the Ohio Supreme Court's opinion syllabus (which is to be looked to forthe rule of law inthe ease), as clarified by the opinion itself, that the judg- ‘ment below did not rest on an adequate and independent state ground but rested solely on federal grounds in that the court eon- sidered the source of respondent's privilege to be the First and Fourteenth Amend- tents, and therefore this Court has juris- diction to decide the federal issue. Pp. 2852-2864 2 The First and Fourteenth Amend- ments do not immunize the news media when they broadcast a performer's entire act without his consent, and the Constitu- tion no more prevents a State from requir- ing respondent to compensate petitioner for broadeasting: his act on television than it would privilege respondent to film and broadeast a copyrighted dramatic work without liability to the eopyright owner, or to film or broadcast a prize fight or a baseball game, where the promoters or par- ticipants had other plans for publiciing the event. Time, Ine. v. Hill supra, suished. Pp. 2854-2859, (a) The broadcast of a film of petition er's entire act poses a substantial threat to the economie value of that performance, since (1) if the publie can see the act free on television it will be less willing to pay to see it at the fair, and (2) the broadcast goes to the theart of petitioner's ability to earn a living as an entertainer. Pp, 2857-2858, (b) The protection of petitioner's right of publicity provides an economic incentive for him to make the investment required to produce a performance of interest to the Public. Pp. 2857-2858. (©) While entertainment, as well as news, enjoys First Amendment protection, ‘and entertainment itself ean be important news, neither the public nor respondent will ‘The script of the commentary accompanying the fm cip read as follows: “This now ‘true spectator sport Js the story of the sport of hu: 2851 bbe deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Pp, 2858-2859, (@) Although the State may as a mat- ter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not requite it to do so. Pp, 2858-2869. 47 Ohio St2d 224, 351 NEPA 454, re- versed, John G. Lancione, Fairview Park, Chio, for petitioner. Ezra K. Bryan, Cleveland, Ohio, for re- spondent, Mr. Justice WHITE delivered the opinion of the Court. Petitioner, Hugo Zacchini, is an enter tainer. He performs a “human cannonball” ‘act in which he is shot from a cannon into a net some 200 feet away. Each performance ‘occupies some 15 seconds, In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by ‘grandstands, at the fair grounds, Members ‘of the public attending the fair were not charged a separate admission fee to observe his act, On August 90, freelance reporter for Scripps-Howard Broadcasting Co., the eper- ator of a television broadcasting station and respondent in this ease, attended the fair. He_searried a small movie camera. Peti- tioner noticed the reporter and asked him not to film the performance. ‘The reperter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following. day and videotaped the entire act. This film clip approximately 15 seconds in length, was shown on the 11 o'clock rews program that night, together with favor- able commentary.! ‘man cannonbaling infact, the gre Zacchint is about the only human canosball round, these days Sust happens that, Where he i. isthe Grest Geauga County Fait, ss