Can a Selfie Change the Rules of the Commercial Speech Game?

David Ortiz, clutch hitter for the Boston Red Sox, boasts a reported $5 million in commercial endorsements and brand relationships as varied as JetBlue airlines, Vitamin Water maker Glaceau, and food company Wise Snacks. But it was Ortiz’s deal with Samsung that caused more talk recently than his spring training batting average. 

When the World Series-winning Red Sox went to the White House to meet President Barack Obama, Ortiz requested a selfie with the President. Of course, Ortiz sent it out on social media. And, of course, the selfie was retweeted and publicized and picked up all over the world, including by Samsung.

In discussing the debate surrounding Ortiz’s selfie with the President—whether it was a spontaneous snapshot or a paid marketing stunt on behalf of Samsung—this article looks at the legal issues surrounding brands’ use of celebrities and famous people such as President Obama, and the questions raised about whether such acts are deemed commercial speech or non-commercial speech protected by the First Amendment.