A First Amendment Defense to a Right of Publicity Claim? No Longer “A Shoe In”

In a recent right of publicity case, the Seventh Circuit has significantly broadened the definition of commercial speech, calling into question the availability of a First Amendment defense for community service advertising. In Jordan v. Jewel Stores, Inc., the court held that an ad congratulating Michael Jordan on his induction into the Hall of Fame was commercial speech because it identified the advertiser.

In 2009, Michael Jordan was inducted into the Basketball Hall of Fame. To celebrate the occasion, Sports Illustrated produced a commemorative edition devoted exclusively to Michael Jordan’s career. In exchange for Jewel’s agreement to stock the issue in its grocery stores, Sports Illustrated included a full page tribute to Jordan created by Jewel that included, at Sports Illustrated’s insistence, a “play on words or design that is specific to Michael Jordan.” The ad appeared on the inside back cover of the commemorative issue.

The ad read: “A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.”

Underneath was Jewel’s logo and the slogan: “Good things are just around the corner.”

Michael Jordan did not view the ad as a congratulatory gesture, but an unlawful misappropriation of his name for Jewel’s commercial benefit. To address this alleged wrong, Mr. Jordan filed a $5 million lawsuit. In response, Jewel argued that it was merely exercising its freedom of speech, and the First Amendment immunized it from liability. Jewel insisted that its ad congratulating Mr. Jordan on his accomplishment was no different from other Jewel ads supporting various nonprofit and community organizations.

The District Court agreed with Jewel. However, on appeal, the Seventh Circuit reversed, finding the ad to be commercial speech, and therefore entitled to a lesser degree of First Amendment protection. Commercial speech, or speech that proposes a commercial transaction, may be regulated or restricted. In articulating its opinion, the court focused on three factors, none of which was outcome determinative: whether the speech was an advertisement; whether the speech referred to a specific product; and whether the speaker had an economic motivation for the speech.

In its analysis, the Seventh Circuit rejected Jewel’s assertions that its sole purpose for the ad was to congratulate Mr. Jordan, and not to advertise. The court found it irrelevant that the ad did not promote a specific product. It explained that modern “commercial advertising is enormously varied in style” and that “the commercial message is general and implicit rather than specific and explicit.” The court supposed Jewel’s true purpose was to promote its supermarkets by creating an association in the minds of the public between itself and Mr. Jordan. The sole issue decided by the court on appeal was whether Jewel’s ad qualified as noncommercial speech. Since the Seventh Circuit found that it wasn’t, Mr. Jordan’s claims will proceed without Jewel being able to claim First Amendment protection for its advertisement.

In light of this ruling, businesses need to be cautious when running community service ads or any advertising referencing a person or organization without first obtaining their consent. Even if the ad appears innocuous or community-focused, it may be considered commercial speech and entitled to only limited First Amendment protection.

For more information on this decision, you may contact Richard Young at (312) 715-5260 / richard.young@quarles.com, Matthew Ingersoll at (312) 715-5172 / matthew.ingersoll@quarles.com, or your Quarles & Brady attorney.