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District court holds that an advertisement-like salute to Michael Jordan is constitutionally protected free speech
By Abby Lauer – Edited by Laura Fishwick

Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill., Feb. 15, 2012)
Slip Opinion (hosted by Justia.com)

The Northern District of Illinois has ruled that a national grocery store chain’s reference to basketball superstar Michael Jordan in a page published in a commemorative issue of Sports Illustrated is constitutionally protected free speech. The court has accordingly granted defendant Jewel Food Store’s motion for summary judgment as far as the First Amendment issue is concerned.

The district court held that Jewel’s page constituted noncommercial speech because it did not propose a commercial transaction. Instead, the page merely congratulated Jordan on his accomplishments, and Jewel’s logo and slogan were used “to ensure that the congratulatory message sounded like it was coming from Jewel and not from any other person or entity.” Jordan v. Jewel Food Stores, Inc., 2012 WL 512584, at *4. In addition to the general noncommercial speech inquiry, the Northern District of Illinois also applied the Supreme Court’s subsidiary three-factor test to determine whether speech is commercial, and the court found that the test favored finding Jewel’s page to be noncommercial speech.

ESPN Chicago provides an overview of the case. Rebecca Tushnet’s 43(B)log offers a detailed description of the district court’s holding and analysis. 

In 2009, when Michael Jordan was inducted into the Basketball Hall of Fame, Sports Illustrated published a commemorative issue devoted to celebrating his career. At the publisher’s request, Jewel designed a page for the issue that featured a pair of basketball shoes with 23, the number Jordan wore for most of his career, on the tongue of each shoe. The text of the page congratulated Michael Jordan on “scores of rewritten record books and numerous buzzer beaters.” Id. at *1. The page also included Jewel’s logo and slogan. After the issue was published, Jordan sued Jewel for violating state and federal trademark laws as well as the Illinois Right of Publicity Act, which prohibits the use of an individual’s identity for commercial purposes without permission.

To determine whether speech is commercial, the Seventh Circuit asks whether the speech proposes a commercial transaction. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 684-85 (7th Cir. 1998). The district court held that Jewel’s page did not propose a commercial transaction because it focused “not on Jewel or its particular products and services, but on Jordan.” Jordan, at *4.

Additionally, the Northern District of Illinois held that the Supreme Court’s three-factor test to determine whether speech is commercial favored granting Jewel’s motion for summary judgment. The first factor – whether the speech was an advertisement – favored Jewel because the grocery chain did not pay money to run the page, even though it agreed to specially display the magazine in its stores. Id. at *6. The second factor also favored Jewel: the page did not refer to a particular product or service. Id. at *7.  Although the court conceded that Jewel ran afoul of the third factor because it had an economic motivation for the page, it held that this fact was not enough to find that the page constituted commercial speech. Id. at *8.

The court also emphasized the fact that one of Jewel’s competitors, Dominick’s Finer Foods, ran a similar page in the same issue of Sports Illustrated. According to the court, “anybody inclined to be swayed by Jordan’s appearance in an advertisement knows that he does not play on two or more sides of the same fence, commercially speaking.” Id. at *7.

In holding as it did, the Northern District of Illinois left open the possibility that Jordan could continue his suit against Jewel; the court asked Jordan and Jewel to submit briefs on whether the noncommercial status of Jewel’s page conclusively defeats Jordan’s claims. Id. at *9.

Abby Lauer is a 3L at the Harvard Law School.

Posted On Feb - 26 - 2012 Comments Off

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