Michael Jordan recently learned that his achievements on the
basketball court do not translate into success in court when his
opponent is the First Amendment.
In a ruling against Mr. Jordan, a federal judge in Chicago
determined that a grocery store's full-page ad in a 2009 Sports
Illustrated congratulating him on his election to the Basketball
Hall of Fame was not a commercial advertisement and was entitled to
full First Amendment protection.
The decision essentially gutted the star's suit, which had
claimed that the ad infringed on his trademark and business
interests, and exploited his name and identity for commercial gain
without his permission.
While the outcome means that advertisers have some protection
against such celebrity suits, companies carry the risk of
committing fouls, especially as the definition of
"advertising" continues to expand, and online, mobile and
owned-media platforms provide new ways to engage with
consumers.
What's the play?
Commercial speech is speech that promotes a commercial transaction,
and it doesn't receive the same broad First Amendment
protection as noncommercial speech. The decision reinforces that
not all communication from a company is "commercial
speech" just because the company has an inherent profit motive
in everything it does or says.
Jewel Foods was invited to participate in the commemorative issue
of Sports Illustrated honoring Jordan for free in return for
selling the issue at checkout displays. The company's page
pictured a pair of basketball shoes emblazoned with 23
(Jordan's number during most of his career with the Chicago
Bulls), the Jewel-Osco logo and slogan, "Good things are just
around the corner" and a message congratulating Jordan,
"a fellow Chicagoan," on his accomplishments.
The judge concluded that the page was not an actually an
advertisement, even though everyone associated with it referred to
the placement as an "ad" -- a convenient, shorthand term.
The text praised Mr. Jordan, not Jewel products or services. The
messaging would need to propose or invite a commercial transaction,
or refer to a specific product or service -- neither of which this
ad did -- to justify stripping it of some First Amendment
protections. (Mr. Jordan also sued Dominick's Finer Food,
another Chicago-area store, for a similar ad that included a $2-off
coupon, which the judge said may have crossed the line into
commercial speech.)
The athlete's argument that Jewel's logo and slogan were
intended to enhance its brand's value and promote its stores,
thereby making the page a commercial ad, also missed the mark,
according to the judge. The logo was the most effective way to
identify Jewel as the well-wisher, and the slogan personalized the
message and reinforced the notion of the company as a "fellow
Chicagoan."
Home or away?
Where and how content appears affect whether it is
commercial speech. In this case, the "ad" appeared in the
commemorative SI. Jewel didn't buy the ad space, and it
didn't own the media outlet. But the outcome might have been
different had Jewel run the ad in its store circular, or on its
website or Facebook page. Content on such owned-media channels is
more likely to be considered commercial speech because their main
(and some might argue, only) purpose is promotion of the brand, and
its products and services.
Buzzer-beater?
The decision isn't an impenetrable guard against
celebrity lawsuits. The court hasn't yet dismissed the suit
entirely. Mr. Jordan's team has asked the judge to reconsider
the decision and will be allowed to appeal the case's
outcome.
The takeaway is that while congratulatory ads, if done right, are
not commercial speech, lots of other content is.
Paid advertising in traditional media that promotes is obviously
commercial speech. Other forms of messaging that tie well-known
people to a brand without their permission may leave marketers open
to lawsuits.
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