How To Give Your Brand’s Advertising Increased Free Speech Protection

As advertising content becomes more sophisticated and crosses over into entertainment, it is becoming more difficult to distinguish commercial from noncommercial speech. Why does this matter? The First Amendment affords a higher degree of protection for noncommercial speech than commercial speech. A recent lawsuit between Michael Jordan and Jewel Food Stores, Inc., a grocery chain, erodes the line between noncommercial and commercial messaging.

Jewel had taken out a full-page ad in a commemorative edition of a 2009 Sports Illustrated magazine honoring Michael Jordan for his induction into the Basketball Hall of Fame. Jewel placed the ad for free in exchange for a promise to sell the magazine at its grocery stores’ checkout displays. The ad copy congratulated Jordan for his accomplishments and displayed a pair of basketball shoes with the number 23, a reference to Jordan’s days with the Chicago Bulls. Under the copy, the ad displayed a large Jewel-Osco logo and its slogan, “Good things are right around the corner.” The ad did not mention any of Jewel’s products or services, and Jewel does not sell basketball shoes.

Jordan sued for trademark infringement, violations of his right of publicity, Lanham Act violations, and unfair competition. A federal judge in the Northern District of Illinois found that the First Amendment protected Jewel’s ad as noncommercial speech. The opinion stated, “At the most basic level, the page does not propose any kind of commercial transaction, as readers would be at a loss to explain what they have been invited to buy.” Instead, the court found that the ad was a congratulatory message only and said that inclusion of Jewel’s logo was necessary to identify the speaker.

The court noted that Jewel did not pay to place the ad, that it mentioned none of its products or services, and that unlike another ad placed by Dominick’s Finer Foods (who Jordan also sue), Jewel had not included a coupon or a reference to a particular product.

The court concluded, “In sum, Jewel’s economic motivation for producing and placing its page in the commemorative issue does not render the page commercial speech.” If Jewel’s content was not commercial speech, it will be afforded a higher degree of protection under the First Amendment making it much harder for Jordan to sustain his legal attack.

The judge’s ruling was surprising to many legal commentators. Everybody involved in the case called the document in question an “ad”, and yet, the judge held the page was not commercial speech. If this holding is not reversed, it represents a loss for celebrities trying to maintain control over their images. Although the fact-specific nature of the case may limit the breadth of its reach, the holding potentially opens up the field for advertisers to capitalize on celebrities’ fame with congratulatory ads.

The case has broader implications as well. Social media has led to a blurring line between advertising messages and editorial content. Brands should watch this case to see where it stands on appeal. Another ruling against Michael Jordan may open the door to brands experimenting with experiential or gamified content and seeking broader protection under the First Amendment as noncommercial speech.