The Right to Dignity Rex D. Glensy - Columbia Law School

116 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65
party. Roberta Rosenthal Kwall argues for this very notion of dignity.
In linking dignitary interests to the action for misappropriation of the
right of publicity, Kwall persuasively points out that injuries to
human dignity are different from those traditionally associated with
violations of privacy (hurt feelings) 233 and thus, the standard
remedies offered to those who have their right to publicity violated
are ineffective in addressing the violence done to human dignity. 234
Kwall also draws a parallel between dignity rights and defamation by
noting that there appears to be “a trend in defamation law to include
protection against ‘aspects of personal humiliation and degradation’”
that links directly to dignity rights. 235 Most importantly, the tort of
misappropriation of the right of publicity grants a person the right of
control over his image, which is an integral part of one’s identity, and
in turn is bound up in an individual’s human dignity. 236 Thus,
granting control over this image through a private right of action is a
corollary to preserving each individual’s right to human dignity.
Finally, what would the consequences be if the United States
adopted a positive notion of dignity rights? Fortunately, the answer to
this question is not speculative because, as illustrated above, some
countries already adopt this reading of dignity rights, while the
United States itself currently incorporates some elements of this
concept of the right to dignity. In other words, the solution would not
operate in a vacuum.
Probably the best example of this approach in the United
States is Goldberg v. Kelly. 237 In Goldberg, the Supreme Court held
that the government must provide a pretermination hearing for
welfare recipients because procedural due process assumes a “basic
commitment . . . to foster the dignity and wellbeing of all persons
within its border.” 238 Justice Brennan, the author of the majority
opinion, noted that “public assistance . . . is not mere charity, but a
means to ‘promote the general Welfare, and secure the Blessings of
233. See Kwall, supra note 94, at 1350–1353 (contrasting dignity concerns
with economically compensable injured feelings),.
234. See Kwall, supra note 94, at 1346, 1366–67 (giving examples of how
dignity is affected by misappropriation of one’s name or image).
235. Id. at 1349 (quoting Bloustein, supra note 6, at 993).
236. See Alice Haemmerli, Whose Who? The Case for a Kantian Right of
Publicity, 49 Duke L.J. 383, 431 (1999) (asserting “[i]dentity remains something
intrinsic to the individual, subject to individual control as an autonomybased
property right”).
237. Goldberg v. Kelly, 397 U.S. 254 (1970).
238. Id. at 264–65.