In September 2009, Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame, at which time Sports Illustrated produced a special commemorative issue of Sports Illustrated Presents devoted exclusively to his legendary career. Jewel Food Stores--the operator of 175 supermarkets in and around Chicago--was offered and accepted free advertising space in the special issue in exchange for agreeing to stock the magazine.
Jewel's full-page ad appeared on the inside back cover of the issue and included a photo of a pair of basketball shoes bearing Jordan's number 23, with text appearing above congratulating Jordan on his accomplishments and incorporating Jewel's slogan, followed by Jewel's logo in large type (the Seventh Circuit's opinion includes a picture of the ad).
Jordan sued Jewel for, among other claims, violations of the Illinois Right of Publicity Act and the Lanham Act, all based on the allegation that Jewel had misappropriated his identity for its commercial benefit. He sought $5 million in damages plus punitive and treble damages.
Both parties moved for summary judgment: Jewel claimed that the ad was noncommercial speech protected by the First Amendment; Jordan claimed the ad was a commercial use of his identity. The district court concluded that Jewel's ad was fully protected noncommercial speech and therefore entered judgment for Jewel on all of Jordan's claims.
Although it characterized the district court's decision as "thoughtful," the Seventh Circuit nonetheless held that the court had erred in concluding that Jewel's ad constituted fully protected noncommercial speech and therefore reversed on that basis.
Before reaching the substance of the appeal, the Seventh Circuit discussed one issue of law that the parties' agreement allowed the court to avoid resolving. The parties apparently agreed with the proposition that the First Amendment precluded application of the laws upon which Jordan's claims were based to any noncommercial speech as defined in the constitutional sense, thereby providing a complete constitutional defense. But the law on that issue is "considerably more complex," the Seventh Circuit commented, and it was "far from clear that Jordan's trademark and right-of-publicity claims fail without further ado" even if Jewel's ad constituted noncommercial speech. Nonetheless, because the parties had agreed otherwise, that issue was left for another day.
Moving on to the central issue, the Seventh Circuit discussed the varying definitions or descriptions of "commercial speech," including "speech that proposes a commercial transaction." But "commercial speech" is not limited to speech that falls within that narrow definition; rather, speech can still be characterized as "commercial" if it contains both commercial and noncommercial elements. In such instances, the court identified three non-exclusive considerations: whether "(1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech."
Applying these considerations to Jewel's ad, the Seventh Circuit rejected Jewel's argument that the ad wasn't commercial speech because it didn't propose any commercial transaction. Rather, the text of the ad must be considered in its context as well as the context of modern commercial advertising:
We know from common experience that commercial advertising occupies diverse media, draws on a limitless array of imaginative techniques, and is often supported by sophisticated marketing research. It is highly creative, sometimes abstract, and frequently relies on subtle cues. . . . An advertisement is no less "commercial" because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service. . . . Very often the commercial message is general and implicit rather than specific and explicit.
Such was true with Jewel's ad, the Seventh Circuit concluded, because it sought both to congratulate Jordan and promote Jewel's supermarkets. The latter purpose was demonstrated by the prominent use of Jewel's logo in the center of the ad in type larger than any other on the page, and the explicit incorporation of Jewel's slogan ("just around the corner") into the text of the congratulatory message:
In short, the ad's commercial nature is readily apparent. It may be generic and implicit, but it is nonetheless clear. The ad is a form of image advertising aimed at promoting goodwill for the [Jewel] brand by exploiting public affection for Jordan at an auspicious moment in his career.
Finally, the Seventh Circuit clarified the "inextricably intertwined" doctrine:
Properly understood, . . . the . . . doctrine applies only when it is legally or practically impossible for the speaker to separate out the commercial and noncommercial elements of his speech. In that situation the package as a whole gets the benefit of the higher standard of scrutiny applicable to noncommercial speech. But simply combining commercial and noncommercial elements in a single presentation does not transform the whole into noncommercial speech.
So clarified, the doctrine did not apply to Jewel's ad and Jewel's constitutional defense to Jordan's claims was defeated.
The case cite is Jordan v. Jewel Food Stores, Inc., Appeal No. 12-1992 (7th Cir. Feb. 19, 2014).