Diegoestefano97/Wikimedia
Diegoestefano97/Wikimedia

BY |- In 2009, Michael Jordan’s entry into the Naismith Memorial Basketball Hall of Fame was marred by a “petty and punitive” speechfocused more on settling old scores than celebrating his legendary career. As Yahoo Sports columnist Adrian Wojnarowski wrote at the time: “This wasn’t a Hall of Fame induction speech but a bully tripping nerds with lunch trays in the school cafeteria.”

As it turned out, the former Chicago Bulls star was only getting started. More than four years later, Jordan’s indignation at the nerve of people trying to celebrate him is still playing out, only now the battle is taking place through the federal courts. At the heart of the matter is the U.S. Supreme Court’s infamous “commercial speech doctrine.” Interpreting this doctrine, the 7th U.S. Circuit Court of Appeals recently concluded that the First Amendment is no defense when a highly marketable celebrity like Jordan is angry with you.

Never thank Michael Jordan without his permission

The saga started in late 2009, when Sports Illustrated sold a commemorative issue celebrating Jordan’s career and Hall of Fame induction. Time Inc., the magazine’s publisher, offered the Chicago-based supermarket chain Jewel-Osco a free full-page ad in exchange for selling the issue in its stores. As befitted the subject, the ad took the form of a congratulatory message: “Jewel-Osco salutes [Jordan] on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.”

Jordan promptly responded to Jewel-Osco’s neighborly congratulations with a lawsuit. He claimed the Jewel-Osco ad violated his “right of publicity” under Illinois law and constituted false advertising under state and federal law. In Jordan’s mind, the ad—which featured generic red-and-white sneakers with Jordan’s jersey number, 23, on them—unfairly appropriated his image for commercial purposes, namely promoting Jewel-Osco, and affected the value of his personal brand. He demanded $5 million in compensation plus punitive damages, which can be tripled under the trademark-governing Lanham Act. And for good measure, Jordan sued a Jewel-Osco competitor who also ran a congratulatory ad in the same Sports Illustrated issue.

In February 2012, U.S. District Judge Gary Feinerman ruled that Jewel-Osco’s ad was “noncommercial speech” entitled to full protection under the First Amendment. Feinerman rejected Jordan’s argument that because the ad featured the Jewel-Osco logo and invoked the supermarket’s national advertising slogan—“Good things are just around the corner”—it was proposing a “commercial transaction.” Feinerman said that even a person “with the benefit of multiple layers of green eyeshades” could not read an invitation to buy in the congratulatory text of Jewel-Osco’s message. The ad was clearly part of a larger magazine package intended to celebrate Jordan, and the use of Jewel-Osco’s name and slogan was simply “the most effective way to identify Jewel as the speaker” of its particular message.

The 7th Circuit didn’t see it that way. In a February 19, 2014, opinion, Circuit Judge Diane S. Sykes concluded that Jewel-Osco’s message was “a form of image advertising aimed at promoting the Jewel-Osco brand.” That made it “commercial speech,” which is entitled to a “lesser degree of constitutional protection” than noncommercial speech. Sykes returned the case to Judge Feinerman with instructions to let Jordan continue his lawsuit.

The nonsensical commercial speech doctrine

The First Amendment itself makes no distinction between “commercial” and “noncommercial” speech. It was the Supreme Court, back in 1942, that “plucked the commercial speech doctrine out of thin air,” according to Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals and attorney Stuart Banner. Kozinski has long been one of the leading judicial critics of the commercial speech doctrine. Another is Supreme Court Justice Clarence Thomas, who wrote in a 1996 concurring opinion, “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.”

Nonetheless, most federal judges continue to believe there is such a thing as commercial speech that must remain segregated from noncommercial speech at all costs. The problem is that it’s nearly impossible to figure out which is which. The Supreme Court has attempted to fashion various tests over the years, but this has only added to the confusion. As Kozinski and Banner observed, “If you think carefully enough, you can find a commercial aspect to almost any First Amendment case.” The commercial speech doctrine thus provides a convenient constitutional end-run for the government to censor any speech it dislikes.

While commercial speech segregation is often justified under the pretext of shielding consumers from false or misleading advertising, the censorship often affects completely truthful statements. For example, the Justice Thomas quote above came from a 1996 case (Liquormart Inc. et al. v. Rhode Island et al.) where the state of Rhode Island had banned the advertising of liquor prices by retailers. The state’s express motive was to prevent customers from learning about lower prices, and thus discourage them from purchasing and consuming alcohol. The Supreme Court ultimately rejected Rhode Island’s actions, but the majority did so only after applying its complicated formula for deciding when such censorship should be allowed.

Giving fame a First Amendment veto?

The whole point of the First Amendment is to prevent the government from playing referee in questions of speech or expression. Yet the commercial speech doctrine requires judges to ascertain whether a speaker’s motives are sufficiently noncommercial to warrant protection.

In the Jordan case, Judge Sykes decided Jewel-Osco’s ad was not protected speech because it wasn’t altruistic enough; to her, the ad constituted an insidious form of “image advertising.” Sykes went so far to suggest there could be no First Amendment protection for any speech by a business that so much as mentioned a famous celebrity: “There is a world of difference between an ad congratulating a local community group and an ad congratulating a famous athlete. Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value.”

Sykes has this backwards. The only reason Jordan’s “identity has commercial value” is that thousands of businesses—most of them media outlets—spent decades promoting his name and accomplishments to the public. Sure, some of these businesses paid Jordan for his endorsement, but the majority did not. Publications such as Sports Illustrated that covered Jordan for decades did not require his permission to write stories. And Time Inc. is hardly a charity; it publishes magazines to attract subscribers and advertisers. Despite these terrible commercial motives, Jordan still benefited from the increased profile and good will.

In addition to the commercial speech doctrine, the legislative invention of new forms of intellectual property—such as the Illinois right of publicity cited in Jordan’s lawsuit—create further incentives for courts to carve out more and more First Amendment exceptions. Even Sykes admitted, “there is no judicial consensus on how to resolve conflicts between intellectual property rights and free speech rights.” But why is there any conflict to begin with? Free speech should not be subject to veto just because it offends the ego of the second greatest basketball player of all time (sorry, Mike, but Bill Russell will always be the best).

S.M. Oliva is a writer and paralegal living in Charlottesville, Virginia.

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