Sometimes businesses advertise offers for particular products or services. In addition to product advertising, businesses frequently engage in “image” advertising, where they promote their brand generally rather than a specific product. Both types of advertising may constitute commercial speech. The U.S. Supreme Court commonly defines commercial speech as “speech that proposes a commercial transaction.” Although the Court has addressed this phrase’s meaning, it has never provided a comprehensive method for determining whether a given expression constitutes commercial speech. As a result, some courts interpret this phrase to apply narrowly in scope, while others find that it can be applied broadly. A significant question that has confused the courts is whether “image” advertisements can qualify as “speech that proposes a commercial transaction.”
The Seventh Circuit examined this issue in Jordan v. Jewel Food Stores, Inc., which began as a right of publicity dispute between NBA legend Michael Jordan and the Midwestern supermarket chain Jewel-Osco. In 2009, Jordan was inducted into the Basketball Hall of Fame, and Jewel took out a full-page advertisement in an issue of Sports Illustrated Presents to commemorate Jordan’s career. Jewel’s ad featured a pair of basketball shoes displaying Jordan’s legendary number “23,” and it paid tribute to Jordan with a few lines of text. Jewel incorporated its trademarked marketing slogan into its tribute and also prominently displayed its trademarked logo in the center of its advertisement. Jewel claimed that it was simply congratulating Jordan on his hall of fame induction. To Jordan, however, Jewel’s advertisement was an unwelcomed use of his commercial identity that he felt unfairly portrayed him as endorsing the Jewel-Osco brand without his consent.
Jordan sued Jewel under various theories of false endorsement. Jewel maintained that its advertisement was speech related to a significant public issue, and thus argued that the First Amendment provided a full defense against Jordan’s claims. Jordan argued his claims could proceed because Jewel’s advertisement was in fact commercial speech and thus entitled to a lesser-degree First Amendment protection. The Seventh Circuit, applying a flexible interpretation of commercial speech, held that when considered under the proper context, Jewel’s advertisement constituted commercial speech. This article argues that the Seventh Circuit’s broad application of the commercial speech doctrine is supported by case law and that the Seventh Circuit’s flexible application of the commercial speech doctrine is most practical and effective path forward in private-right commercial speech cases.
Michael A. Albert,
MJ Still Winning in Chicago: The Seventh Circuit Correctly Holds That Jewel-Osco’s Use of Michael Jordan’s Likeness in Its Advertisement Constituted Commercial Speech,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss2/6