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Keeping her 30 minutes of fame here. illinois has the right of publicity act which protects people. in this case he was news and he is news. what silz doing and still unsettled law here because this act just recently passed. they have a balance test, free speech under the first amendment versus unauthorized commercialized use of somebody in it. this guy is news. i think is case is phony and i don't think it's going anywhere. >> gregg: i'm not sure. david, this reminds me of the famous abdul jabar case. general motors ad about oldsmobile, jabar is winner and so is old more bill. the court ruled...

And informational websites and books. but that is not the case here, is it? >> i think you could make an argument that it is. it's a news station. they are saying he didn't listen. maybe you should and you'll be informed and same thing may not happen to you. >> gregg: what is newsworthy about that. it has nothing to do with his job as governor. >> his existence at the time in the state, when this was going on was news in itself would be the argument that i think would be the strongest here. i think also not to be able to speaking about him, talking about him, referencing him, should they have ...

In the case you are not going to be getting it. >> gregg: if their ratings went up and revenue went up that is measure of damages, isn't it? >> it's his brand. they are using his brand to profit. >> gregg: my producer is giving me a hard wrap. good to see you. >> arthel: florida senator marco rubio lashing out at president obama. he says the president has made it nearly impossible for any fresh debate to take place. is he right? with hand-layered pasta, tomatoes, and real mozzarella cheese. but what makes us even prouder... is what our real dinners can do for your family. stouffer's. let's fix...

Commercial purposes by a third party for their commercial gain. >> the speech about a governor, an elected public official in the wake of his conviction for serious crimes. to suggest that people can't talk about him, use his name, criticize him, applaud him in a public forum without paying him, i mean that is sort strikes me as wrong. >> gregg: does she have a case? joining me is rich ally david schwartz. let me say we have not been able to get our hands on the lawsuit itself, but i'm assuming here that she is suing on his behalf as a representative for him. let's not talk about standing to s...

Isn't this just the same case. >> you've got the wrong one up. you've got namath. it's the same one. its case by case, each set of facts needs to be looked at. clearly when you see the image of rod blagojevich up on a billboard promoting a radio station and also have to look at the facts in the case also. the fact that one of the people from the radio station even express they had were using it that their ratings jumped. there is no question it's a commercial purpose and there is no newsworthy function whatsoever. >> gregg: they put up the namath case but it's instructive. it said it defines w...