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Dimensions of Personhood: Reflections on Penn State and Mississippi

November 12th, 2011 No comments

Last week, pundits and prognosticators were puzzled when Mississippi voters decisively rejected an amendment to the state’s constitution that would have made fertilized eggs persons, presumably entitled to all the rights that human beings enjoy. The measure, which almost surely would have been declared unconstitutional by the courts (I doubt the Supreme Court even would have bothered to weigh in), ended up being too much even for voters in one of the reddest of red states. But let’s not forget that more than four in ten voters said “yes” to the measure.

More than anything else, a “yes” vote required turning a blind eye to the complexities of life. Not only would the measure have outlawed certain forms of contraception (bringing us back to an earlier time when the state’s heavy hand tried to control reproductive decisions), and raise problems for in vitro fertilization (by effectively limiting many women to a single embryo), it would also have denied reality by fully equating even the earliest embryos to the women carrying them. In theory, this would have stopped even abortions needed to save women’s lives — by what logic, other than a utilitarian calculus that seems ruled out by the logic of this measure, could the embryo’s life be affirmatively ended in order to save the mother’s?

Such certainty in the face of such complexity is easy, and cost-free, when you’re pulling a level at the ballot box. But I wonder how those same people would have reacted had they come upon the horrific scene that confronted Mike McQueary that day in the shower at the Penn State athletic facility. Or if they had been told what happened, as was Joe Paterno. How sure are they that they’d have done the right thing? I’d like to think I’d have known exactly what to do, but you never know unless you’re in that moment. It’s humbling to think about, and the reason we need clear and unambiguous rules in place to deal with such cases. Even then, we won’t always get it right.

Perhaps thinking through some of the “what ifs” would have resulted in a different vote on personhood — so easy to state, so hard to define, and so likely to cause terrible difficulties.

March (of Commerce) Madness!

July 4th, 2009 No comments

In a class action lawsuit recently filed, and reported in today’s New York Times, NCAA football and basketball players are seeking damages against Electronic Arts, a company that creates video games using their likenesses.

Such lawsuits have been recognized at least since the 1950’s, when a federal appellate court in New York wrote:

“[A] man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture….[T]his right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.”1

The revenue today, of course, isn’t so much in printed media, but in video games. Both the pervasively unethical NCAA and Electronic Arts know exactly what they are doing; they are in cahoots in this latest effort to deprive college athletes of any of the obscene amounts of revenue that college sports generates.

The NCAA called the complaints meritless.  Of course they did. Sooner or later, this whole edifice of exploitation is going to implode (likely via judicial action), and the NCAA has a self-preserving interest in delaying that day of reckoning.

As for Electronic Arts: The company also sells games depicting professional athletes, with only one, fig-leaf difference between the two sets of games:  The professional games have names attached, while the college games do not. Don’t worry: You can go to another site, pull up the names, and then link  them — permanently — to the Electronic Arts athletes. This reminds me of the way gun sellers were able to avoid the ban on semi-automatic weapons by selling them in pieces, for easy assembly by mail-order purchasers. (I’m serious.)

If there weren’t so much money involved, and such complicity in the exploitation of valuable labor, this would have ended a long time ago. My  belief that a court will need to take action stems from the reality that Congress is unlikely to stand against this kind of monied special  interest group. Perhaps a just verdict in this case will be the first step towards financial fairness to these athletes.

  1. Haelan Laboratories,  Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).