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On Thursday, a Los Angeles Superior Court judge will hear a novel First Amendment battle over the extent to which an in vitro father can mention his child’s name.
At the center of the dispute is actor Jason Patric, who has been locked in a custody battle with his ex-girlfriend Danielle Schreiber over their four-year-old son Gus, who was born through artificial insemination. Thanks to California law, which grants the mother full custody unless there is a written agreement establishing parental rights before conception, a judge has denied The Lost Boys star access to his son.
As the custody issue goes to an appellate court next month, Patric has launched an organization called Stand Up for Gus to raise awareness of parental alienation. At a fundraising event last autumn, Matt Damon, Kiefer Sutherland and Jon Hamm were among the celebrities on hand. Patric has also built awareness for the project with interviews on shows like 20/20 and The View. The actor has also established Twitter and Facebook pages that mention and picture Gus.
According to Patty Glaser, one of the Glaser Weil attorneys representing Schreiber, this amounts to a “public relations tirade” from a father who she says didn’t want his name on the birth certificate so as to avoid attention from the paparazzi.
Schreiber is now demanding a restraining order. “We are asking him not to use the child’s name and likeness for commercial purposes without mom’s permission,” Glaser tells The Hollywood Reporter.
In the past, celebrities like Liam Neeson and Sandra Bullock have been the ones leaning on likeness rights laws to stop the unauthorized use of their fame. Other celebrities have asserted privacy laws to keep the media from intruding upon their space. In this case, it’s the other way around, as the celebrity is the one raising a First Amendment defense.
“The relief requested by Ms. Schreiber is much broader than Patty Glaser describes,” responds Lawrence Iser, the Kinsella Weitzman attorney attempting to stand up to the restraining order motion. “They are asking the Court to permanently enjoin Mr. Patric from publicly using the child’s name or likeness for any commercial, charitable, or personal purpose. Our country is founded upon the fundamental rights to speak freely and petition for causes, and the censorship sought by Ms. Schreiber is contrary to those fundamental values. Ms. Schrieber seeks a prior restraint on Mr. Patric’s free speech, which is presumptively unconstitutional under the First Amendment and the California Constitution.”
Glaser disputes the notion of censorship — arguing that what’s really at issue is the child’s “exploitation.” She doesn’t like that Gus’ name is being used for fundraising purposes and objects to the way the actor has been promoting his cause through the media. “Just as an example,” she says, “There is a picture of him in People Magazine, and in background is a child’s room. The room was never there until the lawsuit originated. None of that is true. They lived separately. He is creating this false narrative.”
Free speech is obviously not absolute. One can’t yell fire in a crowded theater. Judges sometimes restrain individuals from harassing another. And the welfare of minors is especially tricky on matters of what can and can’t be said.
On the other hand, the personal sphere can often collide with the public one, and the best way to advocate for change is often to relate some intimate trauma. If the necessary change is the custodial rights for fathers in situations where natural pregnancy is difficult, how does the advocate do that without bringing — or being asked to bring — his own experience to bear?
Iser thinks there is a lot at stake. He believes the judge must focus on all the non-commercial speech at risk.
Patric’s attorney says, “We have cited a legion of cases to the court that hold that debate on public issues may not be so limited. The requested injunction would also prohibit Mr. Patric from talking about his son at dinner with a friend at a restaurant or from posting stories about his child on Facebook or Twitter. This is not a precedent that the Court should set.”