Marcinkus v. NAL Publishing, Inc.

In 1982, Paul Marcinkus (plaintiff), a Catholic archbishop who was head of the Vatican Bank, gained notoriety for his alleged involvement in a bank scandal. NAL Publishing, Incorporated (NAL) (defendant) published and distributed a fictional novel entitled In the Name of the Father, which depicted a character—who bore Marcinkus’s real name and background—as being a coconspirator in an assassination attempt. The novel and related advertisements used Marcinkus’s real name and background. The novel’s dust cover and other advertisements also included a quote that appeared to be from Marcinkus. The novel, however, included a disclaimer stating that the novel was a work of fiction, that Marcinkus was used as a character only to give the book a sense of historical accuracy, and that the characters’ actions and motivations were fictitious. Marcinkus filed suit against NAL in state court seeking a preliminary injunction to stop distribution of the novel. Marcinkus asserted that NAL’s use of Marcinkus’s name in a fictionalized account for commercial purposes was unnecessary and was an invasion of privacy in violation of New York law. NAL filed a cross-motion to dismiss, arguing that, because the novel was clearly a work of fiction, Marcinkus’s right to privacy had not been invaded. NAL further argued that the novel related to Vatican activities within the public interest and therefore that the novel was protected free speech under the First Amendment.