Political Speech – Highly Protected (and infringing?)

It is often said that political speech receives the highest First Amendment protection. In 1976, the Supreme Court in Buckley v. Valeo explained that:

Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to “the exposition of ideas,” Winters v. New York, 333 U. S. 507, 510 (1948), “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . .” Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).

Sounds great, right? First Amendment principles are behind certain fair use “defenses” to things such as trademark and copyright infringement. (I put “defenses” in quotes because it’s a personal belief that what the First Amendment protects creates a right and not a defense.)

[Before proceeding, I should say that I have no agenda with this post other than to point out something that stuck in my trademark-centric brain on the drive to work. I have no comments or thoughts – positive or negative – about any of the people referenced below.]

The sacredness of political speech is based on the genuine goal of promoting debate and bettering the country. It should not be copyright infringement for a candidate to quote passages from a competitor’s book or to use large portions of an opponent’s radio or TV appearance for the purpose of commentary and criticism. Similarly, using a corporation’s trademark in a parody or campaign to remark on some issue concerning that corporation should fall under fair use.

Given this backdrop, I was surprised a few years ago to see yard signs for a candidate for judge in Orlando. The candidate’s last name was “Schott,” and the signs displayed the last name in a typeface that was virtually identical to the Orlando Magic’s typeface at the time. I’m not positive, but there may have been a basketball or hoop on the sign as well. I have looked for images online but could not find them. I distinctly remember the typeface though, and I distinctly remember equating the sign to the Magic logo, and the wordplay with “Schott” rhyming with “shot,” as in a basketball shot. I also vaguely remember bright yellow and red signs for another local candidate, whose last name was “Wesley.” Those signs made the name “Wesley” look just like the Wendy’s logo.

So why bring that up today? Well, I was reminded of the Schott and Wesley campaign signs this morning on the drive to work. Yes, another candidate has appropriated a corporate logo in a bit of wordplay with his last name.

This time it’s a candidate with the last name of “Wilson,” and, you guessed it, he has used what I believe looks like the Wilson sporting goods manufacturer logo as the “W.”

Fair use, or cheap lob shot? (several puns in that caption, let them simmer)

While these may be clever – although not very creative – ways for local candidates to make their names stick in the minds of the voters, is it right? Is this taking advantage of the protection afforded to political speech? For that matter,would this even be protected?

(I wish I could find pictures of the other campaign signs. If any of my readers have interesting campaign signs which use third-party trademarks, please send them to me. I may expand this post in the future.)

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